9 
2 

8 

1 
8 

9  ' 


Geir  .   n  borrowing 
>ok  rvill  please 

not  deface  it  with 
pen  or  pencil  narks. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

Sift  of 
Howard  Surr 


THE     PRINCIPLES 


OF  THE 


LAW  OF  EVIDENCE 


WITH    ELEMENTARY    RULES    FOR    CONDUCTING 

THE   EXAMINATION 

AND 

CROSS-EXAMINATION  OF  WITNESSES 

By  VV.  M.  BEST,  A.M.,  LL.B. 

FIRST    AMERICAN',    FROM    THE    SIXTH    LONDON    EDITION    OF 

JOHN    A .    RUSSELL.   Esq.,  i.I     H 

BY 

JAMES  APPLETON  MORGAN,  Esq. 

09   THE    NEW    YOKK    HAW.      AUTHOM    "I'    "   INK    LAW    OP    LITERATURE,"    AND    AMERICAN     BDITO* 
OF  "  A Di jIm in    ON re,"  ETC.,  ETC. 

IN    TWO    VOLUMES 

VOL.    I 


nt.'.."  voi;::, 

COCKCRO  F  T     &     C  oMI'  A  N  Y, 

1878. 


,A 


T 

\Z1Z 


Entered,  according  to  act  of  Congress,  in  the  year  1873. 

By  James  Api'lkton  Morgan, 

><  u»e  uthce  of  the  Librarian  of  Congress,  at  Washington 


at 


AMERICAN    EDITOR'S    PREFACE. 


The  text  selected  for  the  present  Edition  of  the  late 
Mr.  Best's  learned  treatise,  is  that  of  the  Sixth  London 
Edition,  prepared  by  Mr.  Russell. 

It  having  been  apparent  to  the  American  Editor  that— 
in  so  far  as  books  and  chapters  were  concerned — a  some- 
what arbitrary  division  of  the  work  into  two  volumes  would 
become  necessary — he  has  endeavored  to  conform  that 
division,  as  far  as  possible,  to  the  Author's  plan  in  the  text 
itself.  The  first  volume,  therefore,  will  be  found  to  treat 
principally  of  THE  THEORY  OF  EVIDENCE  IN  GENERAL; 
while  the  second  is  entirely  devoted  to  an   examination  of 

the  Rules  and  Principles  regulating  the  different 

BRANCHES  AND  SORTS  OF  EVIDENCE,  as  presented  in 
Courts  of  Justice.  Owing  to  this  division,  by  far  the 
heavie  I  annotation  naturally  falls  into  the  second  volume, 
an  inequality  which  could  not  well  be  avoided.  An  en- 
tirely new  Analytical  Table  of  Contents  to  each  volume 
has  been  prcpar  d,  and  a  new  Index  and  Table  of  English 
and  Am  rican  Cases  will  follow  the  text  of  the  second 
volume. 

JAMES  APPLETON  MORGAN. 

229  Broaiavay,  New  York. 
August  1.  1875. 


171 


ADVERTISEMENT 


TO  THE   SIXTH    EDITION. 

My  friend,  the  learned  Author  of  this  Work,  stated,  in 
his  original  Preface,  that  the  design  of  the  Work  was,  "  not 
to  add  to  the  practical  treatises  by  which  the  subject 
had  been  illustrated,  but  to  examine  the  principles  on 
which  its  rules  were  founded, — tracing  them  to  their 
sources,  and  showing  their  connection  with  each  other;" 
and  I  have  kept  this  design  steadily  in  view,  in  preparing 
the  present  edition  for  the  press. 

JOHN  A.  RUSSELL. 
Temple, 

January  2,  1875. 


ORIGINAL    PREFACE. 


The  common-law  system  of  evidence,  in  its  actual  state 
the  growth  of  the  last  two  centuries,  must  ever  claim  the 
highest  respect  and  admiration  as  a  whole,  however  partic- 
ular portions  of  it  may  be  justly  or  unjustly  condemned. 
Now,  the  design  of  the  present  Work  is  not  to  add  to  the 
practical  treatises  by  which  the  subject  has  been  illustrated, 
but  to  examine  the  principles  on  which  its  rules  are  founded, 
tracing  them  to  their  sources,  and  showing  their  connection 
with  each  other.  To  this  are  annexed  a  sketch  of  the  prac- 
tice relative  to  the  offering  and  receiving  evidence  at  trials, 
and  a  few  elementary  precepts,  founded  chiefly  on  those  of 
Quintilian,  for  the  guidance  of  young  practitioners  in 
interrogating  witnesses. 

Throughout  the  book,  particularly  in  the  Introduction 
when  treating  of  judicial  evidence  in  the  abstract,  much 
assistance  has  been  derived  from  the  Roman  law  the  civil, 
ians,  and  other  foreign  writers  ;  and  especially  from  the  able 
work  published  by  M.  Bonnier,  at  Paris,  in  1843  entitled 
"  Traite  Thcorique  et  Pratique  des  Preuves  en  Droit  Civil 
et  en  Droit  Criminel."  Large  use  has  also  been  made  of 
"  fientham'a  Rationale  of  Judicial  Evidence,"  in  five  vol- 
umes, London,  1S27;  in  which  the  general  principles  of 
evidence  are  ably  discussed,  and  often  happily  illustrated 


viii  ORIGINAL    PREFACE. 

That  book  should,  however,  be  read  with  caution,  as  it 
embodies  several  essentially  mistaken  views  relative  to  the 
nature  of  judicial  evidence,  and  which  may  be  traced  to 
overlooking  the  characteristic  features  whereby  it  is 
distinguished  from  other  kinds  of  evidence.  Some  of  these 
errors  will  be  pointed  out  in  the  Introduction. 

The  Author  begs  to  express  his  grateful  acknowledg- 
ments for  suggestions  from  many  friends.  The  Index  has 
been  compiled  by  Mr.  H.  Macnamara,  of  the  Inner  Tem- 
ple. 


CHANXERY  LANE, 
July,  1849. 


ANALYTICAL    TABLE 

OF 

CONTENTS    OF   VOLUME    I. 


PARAGRAPH  PACB 

Introduction i 

Connection  between  law  and  fact I  i 

Investigation  of  facts  by  judicial  tribunals                        •        .  2  2 

Part  I. — Evidence  and  Proof  in  general        ....  3 

Human  understanding 3  3 

1°.   Sources  of  ideas               4  3 

1.  Sensation 4  3 

Internal  sense e         .  4  3 

External  sense 4  3 

2.  Reflection 4  3 

2°.  Objects  about  which  the  mind  is  conversant       .         .  5  6 

1.  Relations  between  ideas           .....  5  ° 

2.  Real  existences 5  6 

30.  Intensity  of  persuasion 63 

1.  Knowledge        ....          ....  6  6 

Certainty    ........  66 

Kinds  of  knowledge 6  6 

Intuitive 6  6 

Demonstrative        ......  6  6 

Sensitive 6  6 

Secondary  sense  of  knowledge  and  certainty        .  6  6 

2.  Judgment 7  7 

Probability            7  7 

Extensive  sphere  of 8  8 

Persuasion  resulting  from 9  9 

Proop 10  g 

Evidence II  10 

ion  of  facts 12 

1.  Phy  ical  and  psychological             12 

2.  Events  and                                            ......  13 

3.  Positive. or  affirmative,  and  negative 13 

Evidence  ab  intra  and  ab  extra 14 


CONTENTS. 


Natural  tendency  of  the  mintl  to  believe  human  testimony 
Sanctions  of  truth  . 

1.  The  natural  sanction  .         .         . 

2.  The  moral  sanction 

3.  The  religious  sanction 
Powerful  influence  of  ... 
Sometimes  produce  falsehood  instead  of  truth 

Credit  due  to  hitman  testimony 

i°.   Intention  of  witness  to  narrate  truly 

1.  Interest  or  bias 

2.  Veracity  on  former  occasions 

3.  Manner  and  deportment 
1*.  Capaciy  of  witness        .  .... 

1.  Opportunities  of  observing  the  matters  he  narrates 

2.  Powers  of  perception  and  observation    .         .         , 

3.  Importance  of  the  circumstances  narrated  . 

4.  Memory 

Concurrent  and  conflicting  testimonies  .... 

Things  to  be  considered  when  weighing  testimony  .         , 

1.  Consistency  of  the  narration 

2.  Possibility  and  probability  of  the  matters  related  , 
Misrepresentation,  incompleteness,  and  exaggeration     . 

Divisions  of  evidence         ........ 

1°.  Direct  and  indirect  evidence 

1.  Direct  evidence       ....... 

2.  Indirect  or  circumstantial  evidence      .         .         . 

Conclusive  ....... 

Presumptive      ....... 

2°.   Real  and  personal  evidence  ..... 

3°.  Original  and  derivative  evidence        .  .         . 

Forms  of  derivative  evidence 

Infirmity  of      .  .  .  .  .         .         .  . 

4°.  Pre-appointed  and  casual  evidence         .... 

Part  II. — Judicial  Evidence 

Judicial  evidence     ........ 

Definition .         .         . 

Its  rules  either  exclusionary  or  investitive 

Necessity  and  use  of  .         .         , 

A  handmaid  to  jurisprudence  .         .         ,         ,         . 
Expletive  and  attributive  justice.  , 

Origin  of  municipal  law 

The  principles  which  give  birth  to  municipal  law  applicable 
judicial  evidence      ........ 

I.  Necessity  for  limiting  the  discretion  of  tribunals  in 
termining  facts         ...... 

Difference  between  public  and  domestic  jurisdiction 
a.  Nece^-ity  for  the  speedy  action  of  tribunals 


rARACKAPH 

15 
16 
16 

17 

18 

19 
20 

21 
21 
21 
21 
21 
22 
22 
22 
22 
22 

23 
24 
24 
24 
26 
27 
27 
27 
27 
27 

27 

28 

29 
29 
30 
31 


de 


to 


32 
33 
34 
35 
36 
36 
37 


PAGt 

12 

13 
13 
15 
16 

17 
I? 

«9 
'9 
19 
19 
19 
21 
21 
21 
21 
21 
22 
22 
22 
22 
24 
25 
25 
25 
25 
25 
25 
26 

27 
27 
27 
28 

3- 
32 

32 
34 
35 
35 
35 
37 


38   39 


38 

39 

39 

42 

41 

44 

CONTENTS.  xl 

PARAGRAPH  PACK 

Interest  reipublicse  ut  sit  finis  litium    .         ,         .  41  44 
Rules  for  the  disposal  of  matters  of  fact  necessary 

to  tribunals      ......  42  46 

Rules  regulating  the  burden  of  proof   .         .  42  46 

Legal  Presumptions 42  46 

Different  kinds  of  .         .         ,         .         .         .  43  50 
Abuse  of  artificial  presumptions          .         .  46  49 
Evidence  excluded  on  the  grounds  of  vexation,  ex- 
pense, and  delay 47  53 

3.  In  framing  rules  of  judicial  proof  the  consequences  of 
decisions  must  be  looked  to 49  58 

4.  Difference  between  the  securities  for  legal  and  historical 

truth 50  61 

Mistakes  from  confounding  legal  with  philosophical  and 

historical  evidence 53  59 

Principal  securities  for  the  truth  of  legal  evidence      .         .  54  68 

1.  Political  or  legal  sanction  of  truth        ....  55  69 

2.  Oaths 56  69 

3.  Establisment  of  prescribed  forms  for  pre-appointed  evi- 
dence   60  76 

4.  Rejection  of  the  testimony  of  suspected  persons     .  62  81 

Policy  of  this 62  81 

Endrmous  abuses  of  it  .         .         .         .         •         .         .  63  82 

5.  Requiring  a  certain  number  of  media  of  proof    .        .  65  87 

Advantages  of 65  87 

Evils  of 65  87 

Practice  of  the  civilians  and  canonists           .         .  66  87 

Abuses  of  judicial  evidence      ......  68  90 

Two  particularly  deserving  notice         .         .         .  68  90 

1.  Artificial  legal  conviction       ....  68  90 

Bcntham's  scale 71  96 

Fallacy  of  it 72  97 

Application  of  the  calculus  of  probabilities  to 

judicial  testimony       .....  73  100 

2.  Double  principle  of  decision  ....  74  102 
Conclusion ....  75  103 

Object  and  Division  of  the  work 105 

Object  of  the  work     .........  76  105 

Division  of  the  work       . 76  105 


BOOK    I 

Tmf.  FNOLISH  Law  of  Evidknck  in  General  107 

Part   I. — GENERAL  VlEW       ........  107 

('.rounds  of  judicial  evidence  in  general      .....  79     108 

Characteristic  features  of  the  English  system           ...  80     109 


Xll 


CONTENTS. 


PARAGRAPH 

I.  The  admissibility  of  evidence  is  matter  of  law,  the  weight 
of  evidence  is  matter  of  fact     ..... 
8.  Common  law  tribunal  for   deciding  issues  of  fact 

Principles  on  which  it  is  founded 
J.  Rules  regulating  the  admissibility  of  evidence     . 
Three  kinds  of, 

i.  Relating  to  evidence  in  causa 

2.  Relating  to  evidence  extra  causam 

3.  Rules  of  forensic  proof       .... 
One  general  rule  of  evidence  in  causa — The  best 

evidence  must  be  given         .  •      . 
This  rule  very  often  misunderstood 
Three  chief  applications  of  it 

1.  Judge  and  jury  must  not   decide  facts 

on  their  personal  knowledge 

2.  Exaction    of  original  and  rejection  of 

derivative  evidence 

3.  There   must  be  an  open  and  visible 

connection    between    the   principal 
and  the  evidentiary  facts 

Indicative  evidence 

The  rules  of  evidence  are  in  general  the  same 

in  civii  and  criminal  proceedings 
Difference    as   to    the   effect  of   evidence   in 

civil  and  crimnal  proceedings 
How  far  the  rules  of  evidence  maybe  relaxed 

by  consent 

Two  other  remarkable  features  of  the  English  system 
Checks  on  witnesses, 

1.  Viva  voce  examination  

2.  Publicity  of  judicial  proceedings 
Exceptions  to  the  rule  requiring  the  personal   attendance  of 

witnesses  at  trials 

Salutary  effect  of  the  publicity  of  judicial  proceedings  on  the 
tribunals  and  spectators  


pagb 


81 

no 

82 

in 

83 

118 

86 

125 

86 

125 

86 

125 

86 

125 

87 

126 

87 

126 

88 

128 

88     128 


89     129 


89 

129 

93 

133 

94 

134 

95 

135 

97 

138 

100 

142 

100 

142 

100 

142 

IOI 

146 

106 

153 

Pakt  II. — History  of  the  Rise  and  Progress  of   the  Eng- 
lish Law  of  Evidence  :    with  its   actual  State  and 

Prospects  .        .        . 

Object  of  this  part 

Inconsistent  dicta  as  to  the  antiquity  of  the  judicial  evidence  of 
this  country  .......... 

Difference  between  the  ancient  and  modern  systems 
Rules  of  evidence  are  either  primary  or  secondary     . 

Primary  ruki  of  evidence 

Only  three 

Universal  recognition  of  them          .... 
Secondary'  rules  of  evidence 


159 

108 

159 

109 

160 

no 

161 

in 

162 

in 

162 

in 

162 

in 

162 

in 

163 

PARAGRAPH 

PAGB 

III 

162 

.   112 

T63 

112 

163 

CONTENTS.  xiii 


Much  more  numerous       .... 
Some  almost  as  universal  as  the  primary 
Others  much  less       ..... 

Principles  on  which  these  are  founded  were  well- 
known  to  our  ancestors  .         .         .  .112     163 
In  former  times  the  principles  of  evidence  were  not  embodied 

in  binding  rules 114     168 

Origin  of  the  modern  "  Law  of  Evidence"         .         .         .         .     115     i6g 
Its   characteristic   feature — rules  of  evidence  are    rules   of 

law 116     171 

Gradual  development  of  this  principle  .         .     116     171 

History  of  the  rule  rejecting  hearsay  evidence,  1 17     172 

Progress  of  other  parts  of  the  law  of  evidence  dur- 
ing the  last  and  present  centuries       .         .         .118     174 
Cause  of  the  slow  development  of  the  law  of  evidence 
in  England     ....... 

The  substantive  rules  of  law  come  to  maturity  be- 
fore the  adjective 

Secondary   causes   of  the   establishment     of    our 
modern  systems  of  evidence    .... 
The  English  system  of  judicial  evidence  a  noble  one,  taken  as  a 

whole 

Defects  in  the  system       .  

BOOK    II. 

Instruments  of  Evidence     .        .        .  184 

Part  I. — Witnesses  .  

Witness — what 

Division  of  die  subject 

'"haptcr  I.    Whal  pi  1  ions  are  compellable  to  give  evidence 
Generally,  all  pi  re  1  ompellable  to  give  evidence 

Exception — the  sovereign 

Privilege  of  witnesses  in  not  answering  particular  questions, 

Questions  lending  to  eliminate,  or   expose    to   penalty  or 
forfeiture        ......... 

Questions  tending  to  disgrace       ..... 

Qi  il.jcct  to  civil  proceedings    . 

haptcrll.  Incompetency  oi  witnesses 

Presumption  in  favoi  ol  human  testimony  .... 

1'   tinction  between  the  competency  and  the  credibility  of  wit- 

nc%  .......... 

In    .tnpetency • 

Not  presumed  ........ 

How  a  1  ei  'lined  ........ 

Grown  Is  on  which  witnesses  may  be  rejected  unheard     . 
Abuses  of  the  principle  of  incompetency     . 


119 

177 

119 

179 

119 

177 

120 

180 

I20 

180 

185 

124 

i*5 

124 

185 

125 

186 

125 

186 

125 

186 

126 

187 

126 

1S7 

130 

196 

131 

201 

203 

132 

203 

132 

203 

132 

203 

133 

204 

133 

2M.J 

134 

205 

134 

205 

XIV 


CONTENTS. 


FARAGRAFH 

Rules  of  incompetency  in  the  English  law       ,         .         .  137 

Incompetency  from  interest 137 

Incompetency  from  infamy  of  character    .         .         .  141 

Alterations  effected  by  6  &  7  Vict.  c.  83  .         .  143 

Expediency  of  rejecting  witnesses  as  incompetent  .         .         .  144 

Grounds  of  incompetency  still  existing  in  our  law      .         .         .  145 

I.  Want  of  reason  and  understanding     ....  146 

1.  Deficiency  of  intellect 146 

2.  Immaturity  of  intellect — Testimony  of  children  .  151 

Old  law 152 

Gradual  changes  in  it         .         .         .         .         .         153 

Modern  law  .......     154 

Examination  of  infants  of  tender  years  by  the 

judge       

Dying  declarations  of  infants  .         . 

Effect  of  the  evidence  of  children      .         , 

t*.  Want  of  religion 

Three  forms  of  this  incompetency     .         .         .        , 

1.  Want  of  religious  knowledge     ... 

2.  Want  of  religious  belief         .... 

3.  Refusal  to  comply  with  religious  forms     . 
3*.  Interest 

I.  Parties  to  the  suit 

General  rule  of  the  old  law — not  competent 

Exceptions — 

At  common  law 

Prosecutors     ...... 

Approvers  and  accomplices         .        .         , 

Issues  from  Chancery     .... 

Orders  of  reference 

By  statute 

a.  Husbands  and  wives  of  the  parties  to  the  suit 
General  rule  of  the  old  law — not  competent 
Exceptions — 
At  common  law  ...... 

Charges  of  personal  injury      .         .        . 

Abduction , 

Bigamy  ....... 

High  treason— doubtful       .        . 
By  statute 

3.  Competency  of  parties  and  their  husbands  or  wives 

in  revenue  prosecutions  .... 

4.  Competency  of  parties  in  the  court  for  divorce  and 

matrimonial  causes        ..... 
Certain  persons  who  may  seem  incompetent  witnesses    , 

1.  The  Sovereign  ...... 

2.  Attorney  in  a  cause      ...... 

3    Counsel  in  a  cause    ...... 


156 
157 
158 
159 
159 
1 00 

161 
166 

167 

168 
168 

169 

169 

170 
172 
172 

173 
175 
175 

176 
176 
176 

177 

178 
179 


FACB 

215 

215 

219 

221 

223 

224, 

224 

224 

233 

235 

235 

238 

24I 

242 
244 
245 
245 
246 
246 

254 

258 

259 
259 

263 
263 
264 
264 
264 
269 
270 
270 

271 
271 
27: 
273 
274 
275 


181  278 


182 

280 

T83 

281 

183 

281 

184 

285 

184 

285 

CONTENTS. 


xv 


PARAGRAPH      PAGt 


4.  Jurors 

5.  Judges       ....  ... 

Chapter  III.     Grounds  of  Suspicion  of  Testimony  .         . 

Exceptions  to  the  credit  of  witnesses 

Interests   and  motives  producing  falsehood  and  misrepre 
tation  .......... 

1.  Pecuniary  interest 

2.  Relations  between  the  sexes  .         .         . 

3.  Other  domestic  and  social  relations  .         . 

4.  Desire  to  preserve  reputation        .         .         . 

5.  Interest  in  or  sympathy  for  others   .         .         . 


sen- 


Part  II. — Real  Evidence 

Real  evidence     ........ 

Sometimes  direct      ...         .... 

Usually  circumstantial  ..... 

Immediate  real  evidence  ...... 

Sometimes  exacted  by  law    ..... 

Sometimes  by  practice 

Often  produced  when  not  exacted        .         . 

Views  and  models 

Inspection,  &c.    ....... 

Reported  real  evidence 

Infirmities  of        ......  . 

Circumstantial  real  evidence 

Value  and  dangers  of,  chiefly  conspicuous  in  criminal  p 
cecdings    ........ 

Infirmative  facts  or  hypotheses        .... 

Necessary  inferences  from  circumstantial  real  evidence 
Presumptive  inferences  from  circumstantial  real  evidence 
Physical  coincidences  and  dissimilarities 

Inculpative,  effect  of 

Exculpative,  effect  of        ....        . 

Infirmative  hypotheses  affecting  real  evidence 

1°.  Accident  ........ 

[rrespi  1  ncy        ...... 

2°.   Forgery  ........ 

1.  Self-exculpative 

Sui  ]i'-i  ted  pei  on  innocent  in  toto 

By  innocent  pei  on  to  avert  suspicion    . 

2.  Mali<  ioii^  ....... 

In  .i.ii"  ...... 

With  double  object    ..... 

By  force 

3.  [n  sport,  or  for  a  moral  end     .... 
3*.   Lawful  action  of  the  accused     .... 

Real  evidence  I  ility  of  crime    . 

Presumption'of  larceny  fron  ion  of  stolen  property 


ro- 


IS7 

293 

IS8 

295 

298 

189 

298 

190 

298 

190 

298 

192 

300 

193 

300 

194 

3OI 

195 

30I 

304 

196 

305 

196 

305 

196 

305 

197 

305 

197 

305 

197 

305 

197 

305 

197 

305 

197 

305 

198 

303 

19s 

308 

199 

303 

199 

308 

199 

308 

200 

309 

201 

3IO 

201 

3IO 

20I 

3IO 

20I 

3IO 

202 

3-43 

202 

343 

202 

343 

204 

354 

205 

354 

205 

354 

205 

354 

2o6 

356 

206 

356 

207 

358 

207 

358 

208 

358 

209 

359 

2IO 

359 

211 

360 

PARAGRAPH 

PAGI 

• 

211 

36c 

• 

211 

3<>c 

. 

212 

363 

• 

213 

364 

• 

214 

3b5 

• 

39° 

• 

396 

. 

215 

397 

rough 

. 

2l6 

393 

. 

216 

398 

. 

2l6 

398 

. 

216 

398 

xvi  CONTENTS. 


Sometimes  shifts  the  burden  of  proof 
Possession  must  he  recent 
And  exclusive        ...... 

Carried  too  far  in  practice         .         .         . 
Explanation  of  possession  by  the  accused     . 

Part  III. — Documents 

Chapter  I.  Documentary  evidence  in  general 

Documents      ........ 

Necessarily   come    to  the   cognizance   of  tribunals    through 
human  testimony     ...... 

How  obtained  when  wanted  for  evidence 

When  in  possession  of  the  opposite  party     . 
When  in  possession  of  a  third  party 
Admissibility  and   construction  of   to  be  decided   by  the 

judge 216     398 

Secondary   significations   of    "Writing"    and    "Written    Evi- 
dence"           217     404 

Secondary  signification  of  "Instrument"  .  217     404 

Divisions  of  Writings       ........         21S     406 

1.  Public  and  Private 218     406 

2.  Judicial  and  Not  Judicial 218     406 

3.  Of  record  and  Not  of  record 218     406 

Public  writings 219     407 

Private  writings 220     41 1 

Deeds 220    411 

Instruments  not  under  seal 221     414 

Wills 222     415 

Meaning  of  the  rules  "  Parol  evidence  is  inferior  to  Written,"  &c  223     417 
Written  narratives  or  memoranda  to  refresh  the  memories  of  wit- 
nesses                :         .     224     423 

Principle  "  Quomodo   quid   constituitur  eodem   modo   dissolvi- 

tur" 225     423 

Extrinsic  evidence 226     424 

Not  in   general  receivable   to  contradict,  vary,  or  explain 

written  instruments 226     424 

Exceptions 226     424 

1.  Difference  between  latent  and  patent  ambiguities,  226  421 
Difference  between  ambiguity  and  unintelligibility,  226  424 
Difference    between    inaccuracy    and    ambiguity  of 

language 226     42 

2.  Admissible    to    impeach    written    instruments    for 

duress,  menace,  fraud,  covin,  or  collusion     .         .     227     428 

3.  Evidence  of  usage  admissible  to  explain  written  in- 

struments             228     429 

Interlineations,  erasures,  &c.  in  written  documents     .         .         .     292     432 

Stamps 230     433 

Lost  documents  presumed  to  have  been  duly  stamped         .     230     433 


CONTENTS.  xvii 

PARAGRAPH      PAGE 

Unstamped  documents  admissible  for  collateral  purposes, 

&c 230    433 

Since  17  &  iS  Vict.  c.  83, :.  26,  not  required  in  criminal  cases,  231     435 
Alterations  introduced  by  the  17  &  18  Vict.  c.  125,  in  civil 

cases 231     435 

Chapter  II.  Proof  of  Handwriting       .                  ....  437 

Proof  of  handwriting       ........  232     437 

Proof  of  handwriting  by  resemblance  to  that  of  supposed  writer, 

&c 232     437 

A  species  of  circumstantial  real  evidence          .         .         .  232     437 

Not  secondary  to  direct  evidence 232     437 

Autograph  or  holograph          ...                  ...  232     437 

Onomastic  and  symbolic  signatures    ......  232     437 

Different  forms  of  proof  of  handwriting  by  resemblance,  &c.  .  233     446 

i°.  Presumption  "  ex  visu  scriptionis"        ....  234     452 

2D.  Presumption  " ex  scriptis  olim  visis"          .        .        .  235     454 
Knowledge  must  not  have   been  acquired  with   a  view  to 

the  specific  occasion        .          ......  236     455 

Refreshing  memory  of  witnesses      .....  237     456 

3°.  Presumption  "  ex  comparatione  scriptorum  "         .         .  238     456 
General    rule    of     the    common    law — not    receivable 

as    evidence  ........  238     456 

Reasons  assigred  for  rejecting  it        ....  238     456 

Examination  of  them     ......  238     456 

Exceptions              . 239     458 

1.  Documents  which  are  evidence  in  the  cause,  &c.  239     458 

2.  Ancient  documents             .....  240     459 
Proof  of  handwriting  of  modern  documents  by  knowl- 
edge acquired  from  specimens            ....  243     465 

Testing  evidence  of  witnesses  by  irrelevant  documents,  244     468 
Alterations  introduced  by  staiutes  17  &  iS  Via.  c.  125, 

and  28   Vict.  c.  18           ......  245     469 

St  lentific  evidence  that  writing  is  in  a  feigned  hand,  &c.    .        .  246     469 
Infirmative  circumstances  affecting  all  proof  of  handwriting  by 

resemblani  e 247    471 

Ancient  practice  respecting  the  proof  of  handwriting   by  resem- 
blance        248     473 

BOOK    III. 

Rui.ks  Regulating  the  Admissibility  and 

Effect  of  EviDENa 4:4 

Pakt  I.— The  Primary              01    1  vidence          .       .  474 

Chapter  I.  To  what  nil                          hould  be  directed     .        .  4:5 
1        e            ould  be  d               and  confined  to  the  matters  which 

are  in  dispute,  or  form  the  subject  of  investigation     .         .  251     475 

Twofold  grounds  of  irrelevancy  of  evidence       ....  252    477 


xviii  CONTENTS. 

PARAGRAPH  PACI 

1.  Connection    between     principal    and   evidentiary    facts 

too  remote          .             252  477 

2.  Excluded  by  the  pleadings,  &c.   or  rendered  superfluous 

by  admissions 252  477 

Matters  unnecessary  to  be  proved 252  477 

1.  Matters  noticed  by  the  courts  ex  officio           .         .         .  253  4S0 

2.  Matters  deemed  notorious 254  481 

Evidence  rejected  for  remoteness 255  4S2 

Only  applicable  to  presumptive  evidence          .         .         .  255  482 

Instances 255  482 

Evidence  to  prove  intent            .....  255  482 

Evidence  to  character 256  483 

Evidence  of  the  character  of  parties         .         .  257  484 

General  rule — not  receivable           .         .         .  257  484 
Exception — When    the   character  of  a  party 

is  in  issue  by  the  proceedings    .         .  258  484 
Evidence  as  to  character  of  the  accused 

in  criminal  prosecutions       .         .         .  259  485 
Nature    of    character   evidence    liable    to  be 

misunderstood           .....  260  486 

May  be  contradicted       .....  261  4S7 
But    not   encountered   by  proof  of  particular 

acts 261  487 

Exceptions       ......  261  4S7 

Witnesses  to  the  character  of  parties  treated 

with  great  indulgence      ....  262  488 

Evidence  as  to  the  character  of  witnesses     .         .  263  490 
Evidence    not    admissible    in  one  point   of  view,    or  for   one 

purpose,   admissible  in  or  for  some  other         .         .  264  492 

1.  Evidence    not    admissible  to  prove   some  of  the  matters 

in  question  admissible  to  prove  others,  &c.   .         .         .  264  492 

2.  Evidence  not  admissible  in  the  first  instance  may  become 

so  by  matter  subsequent    ......  264  492 

3.  Evidence    admissible    to     prove    subalternate    principal 

facts .  264  492 

Chapter  II.  The  burden  of  proof 494 

The  burden  of  proof,  or  onus  probandi     .....  265  494 

Natural  principles  by  which  it  is  governed      ....  266  494 

Legal  rules  affecting 267  495 

Test  for  determining 268  498 

Principles  regulating 269  50c 

I.  General  rule — lies  on  the  party  who  asserts  the  affirma- 
tive         269  50C 

Fallacy  of  the  maxim  that  "  a  negative  is  incapable  of 

proof" 270  500 

Difference  between  negative  averments  and  negatives  271  502 
Determined  by  the  affimative  in  substance,  not  the  affir- 

mafive  in  form 272  503 


CONTENTS.  xix 

PARAGRAPH  PAGE 

S.  Shifted  by  presumptions  and  prima  facie  evidence       .  273  505 

3.  Lies  on  the  party  who  has  peculiar  means  of  knowledge  .  274  505 

4.  Discrepancy  in  the  authorities  as  to  the  extent  of  this 

rule 275  50b 

Chapter  III.   How  much  must  be  proved 513 

Rule — Sufficient  if  the  issues,  &c.  raised  are  proved  in  substance  278  513 
Averments  and   statements  wholly  immaterial  may  be  dis- 
regarded    279  514 

But  not  when  they  affect  what  is  material         .         .  280  514 
The  tribunal  should  ascertain  the  real  question  between  the 

parties 281  515 

Illustrations  from  old  authorities      .  281  515 

Other  instances 283  517 

Application  of  the  rule  in  criminal  cases         .         .         .  284  517 

At  common  law    ........  284  517 

By  statute 284  5:7 

24  &  25  Vict.  c.  100,  sect.  60           ....  284  51  ■ 

14  &  15  Vict.  c.  100,  and  24  &  25  Vict.  cc.  95,  96  284  517 

Variance 285  520 

Amendment  of  variances 285  520 

9  Geo.  4,  c.  15 2S£  520 

In  civil  cases 286  522 

3  &  4  Will.  4,  c.  42,  sects.  23  &  24        .         .         .         .  286  522 
The  Common  Law  Procedure  Acts, — 15  &  16  Vict.  c. 
76,  sects.  35.  S7,  222  ;  17  &  18  Vict.  c.  125,  sect.  96 ; 

23  &  24  Vict.  c.  126,  sect.  36          ....  286  522 

Other  statutes 287  523 

Supreme  Court  of  Judicature  Act,  1873    .         .         .  288  523 

Effect  of  these  statutes 289  523 

In  criminal  cases 290  524 

II  &  12  Vict.  c.  46,  sect.  4 290  524 

14  &  15  Vict.  c.  IOO,  sect.  I 291  525 


THE 


PRINCIPLES    OF    EVIDENCE 


INTRODUCTION 


PARAGRAPH 
Connection  between  law  and  facts        ........       I 

Inrestigation  of  facts  by  judicial  tribunals 2 


I.  Law  has  been  correctly  defined  a  rule  of  human 
action,  prescribed  and  promulgated  by  sovereign  au 
thority,  and  enforced  by  sanction  of  reward  or  pun 
ishment.  But  although  human  actions  are  the 
subject-matter  about  which  law  is  conversant,  they 
are  not  essential  to  its  existence  ;  for  the  rule  is  the 
same  whether  its  aj (plication  is  called  forth  or  not. 
"  If  you  commit  murder  or  steal,  you  shall  be  pun- 
ished;" "if  you  buy  a  man's  lands  or  goods  you 
shall  pay  for  them  ;  "  would  hold  true  as  rules  of  law, 
though  no  murder  or  theft  were  ever  committed,  and 
though  every  debt  contracted  were  faithfully  dis- 
charged.  The  rule  continues  in  abstraction  and 
theory,  until  an  act  is  done  on  which  it  can  attach, 
and  ;i  isume,  as  it  were,  n  body  and  shape.  The 
m  ixiin  of  jurists  and  lawyers  "<\  facto  oritur  jus,"  (a) 
and  such  like,  must  be  understood  in  this  sense  ; 
and  the  duty  of  judicial  tribunals,  consequently,  em- 
braces the  investigation  of  doubtful  or  disputed  facts, 

(a)  3  Blackst.  Com.  329  ;  2  Inst.  49. 


2  INTRODUCTION. 

as  well  as  the   application  of  the  principles  of  juris- 
prudence to  such  as  are  ascertained. 

2.  Facts  which  come  in  question  in  courts  of  jus- 
tice, are  inquired  into  and  determined  in  precisely 
the  same  way  as  doubtful  or  disputed  facts  are  in- 
quired into  and  determined  by  mankind  in  general, 
except  so  far  as  positive  law  has  interposed  with 
artificial  rules,  to  secure  impartiality  and  accuracy  of 
decision,  or  exclude  collateral  mischiefs  likely  to  re- 
sult from  the  investigation.  And  this  is  strictly 
analogous  to  the  relation  between  natural  and  muni- 
cipal law,  of  which  it  has  been  well  observed,  "  There 
are  in  nature  certain  fountains  of  justice,  whence  all 
civil  laws  are  derived  but  as  streams  :  and  like  as  waters 
do  take  tinctures  and  tastes  from  the  soils  through 
which  they  run,  so  do  civil  laws  vary  according  to  the 
regions  and  governments  where  they  are  planted, 
though  they  proceed  from  the  same  fountains."  (&) 
As,  therefore,  the  study  of  natural  law  precedes  that 
of  municipal,  so  an  inquiry  into  the  natural  resources 
of  the  human  mind  for  the  investigation  of  truth, 
should  precede  an  examination  of  the  artificial  means 
devised  for  its  assistance :  and  the  present  Introduc- 
tion will  accordingly  consist  of  two  Parts  devoted  to 
these  respective  subjects. 

(b)  Bacon  on  the  Advancement  of  Learning,  Book  2 


PART    I 

EVIDENCE  AND   PROOF   IN    GENERAL. 

PARAGRAPH 

Human  understanding 3 

i°.  Sources  of  ideas 4 

1.  Sensation 4 

Internal  sense 4 

External  sense          .........  4 

2.  Reflection 4 

2°.  Objects  about  which  the  mind  is  conversant   ...  5 

1.  Relations  between  ideas         .......  5 

2.  Real  existences 5 

3°.  Intensity  of  persuasion 6 

r.  Knowledge        ...                 6 

Certainty      ..........  6 

Kinds  of  knowledge 6 

Intuitive 6 

Demonstrative 6 

Sensitive 6 

Secondary  sense  of  knowledge  and  certainty           ...  6 

2.  Judgment        ..........  7 

Probability 7 

Extensive  sphere  of                        8 

Persuasion  resulting  from 9 

Proof io 

Evidence ir 

Divisions  of  facts      . 12 

1.  Physical  and  psychological       ........  12 

2.  Events  and    tates  of  things 13 

3.  Positive  or  affirmative,  and  negative         .        .               ...  13 
lence  ab  intra  and  ab  extra        ........  14 

Natural  ten  len<  y  of  the  mind  to  believe  human  testimony  .         .         .IS 

Sanctions  of  truth     ...........  10 

1.  I  he  natural  sancl 16 

2.  The  tnoi  al  sanction       .        .        .        .        .        .        .        .        .  17 

3.  The  1                     lion 18 

Powerful  influence  <>f 19 

Sometim                             hood  instead  of  truth 20 

Credit  due  to  huroai               my        . 21 

i°.  Intention  of  witness  to  narrate  truly 21 

1.  tnti                  ias 21 

2.  Veracity  on  formei  01                 .......  21 

3.  Manner  and  deportm              .......  21 


INTRODUCTION. 


Credit  due  to  human  testimony — Continued 

2°.  Capacity  of  witness  ...... 

1.  Opportunities  of  observing  the  matters  he  narrates 

2.  Powers  of  perception  and  observation 

3.  Importance  of  the  circumstances  narrated     . 

4.  Memory    ....... 

Concurrent  and  conflicting  testimonies     . 
Things  to  be  considered  when  weighing  testimony 

1.  Consistency  of  the  narration  .... 

2.  Possibility  and  probability  of  the  matters  related 
Misrepresentation,  incompleteness,  and  exaggeration 

Divisions  of  evidence    .         .         .         .  . 


Direct  and  indirect  evidence 

1.  Direct  evidence 

2.  Indirect  or  circumstantial  evidence 

Conclusive       .... 

Presumptive  . 

Real  and  personal  evidence     . 
Original  and  derivative  evidence 

Forms  of  derivative  evidence 

Infirmity  of  .... 

Pre-appointed  and  casual  evidence 


PARAGRAPH 
21 
25 
22 
22 
22 
23 

1  24 
24 
24 
26 
27 
27 

.  27 
27 

.  27 
27 

.      28 
2 

.  29 
30 

•      31 


3.  The  human  understanding  may  be  considered 
in  three  points  of  view,  namely :  with  respect  to  the 
sources  of  our  ideas ;  the  objects  about  which  the 
human  mind  is  conversant ;  and  the  intensity  of  our 
persuasions  as  to  the  truth  or  falsehood  of  facts  or 
propositions. 

4.  i°.  The  best  metaphysicians  trace  all  our  ideas 
to  the  sources  of  sensation  or  of  reflection.  (V)     There 


(c)  Locke  on  the  Human  Under- 
standing, bk.  2,  ch.  I,  and  passim. 
The  classification  of  ideas  into  those 
of  sensation  and  reflection,  as  the 
terms  are  here  explained,  includes 
those  ideas  which  modern  authors 
attribute  to  faculties  they  call  "  con- 
sciousness, spontaneity,"  &c.  The 
truth  of  this  part  of  Locke's  ideal 
theory,  when  thus  understood,  seems 
admitted  even  by  Stewart,  Reid,  and 
Cousin  who  have  so  severely  attacked 
it   in    other   respects    (See   Stewart's 


Philosophical  Essays,  Essay  1,  ch.  2, 
pp.  85,  86,  3d  Ed.  ;  Stewarts's  Phil- 
osophy of  the  Human  Mind,  vol.  I, 
ch.  1,  sec.  4,  6th  Ed.  ;  Reid  on  the 
Powers  of  the  Human  Mind,  vol.  1, 
Essay  3,  th.  5  ;  Cousin,  Cours  de 
l'llistoire  de  la  Philosophic,  &c,  vol. 
2,  pp.  131  and  389);  and,  notwith- 
standing some  passages  in  his  Essay, 
it  may  be  a  question  whether  such 
were  not  the  meaning  of  Locke  him- 
self. In  citing  that  eminent  metaphy- 
sician,   we     do    not    hold    ourselves 


EVIDENCE  AND  PROOF  IN  GENERAL.        $ 

appear  to  be  two  kinds  of  sensation  ;  (d)  1.  The  in- 
ternal sense — the  intuitive  perception  of  our  own 
existence,  and  of  what  is  actually  passing  in  our 
minds.  Of  all  forms  of  knowledge  or  persuasion 
this  is  the  clearest  and  most  indubitable  ;  and  it  is 
the  basis  of  every  other.  Descartes  and  Locke, 
however  different  their  systems  in  other  respects, 
agree  in  this.  "  Ego  cogito,  ergo  sum,"  is  the  cele- 
brated maxim  of  the  former :  (e)  "  If  I  doubt  of  all 
other  things,"  says  the  latter,  (/)  "  that  very  doubt 
makes  me  perceive  my  own  existence,  and  will  not 
suffer  me  to  doubt  of  that."  "  The  sceptics,"  observes 
Sir  Thomas  Brown,  (V)  "  that  affirmed  they  knew 
nothing,  even  in  that  opinion  confute  themselves,  and 
thought  they  knew  more  than  all  the  world  besides." 
And  according  to  a  scholastic  maxim,  "  Nihil  est  in 
intelleetu,  quod  non  fuerit  in  sensu,"  (/&)  to  which 
Leibnitz  sagaciously  adds,  "nisi  ipse  intellectus."  (7) 
2.  The  external  sense — the  faculty  whereby  the  per- 
ception of  the  presence  of  external  objects,  is  con- 
veyed to  the  mind  through  our  outward  senses,  (/t) 
All  our  other  ideas  are  formed  from  the  above  by  the 
operations  of"  reflection  ;"  (/)  which  may  be  defined, 


accountable  f<>r  all  his  views  or  Ian-  chicane   la   plus  audacieuse  n'oserait 

guage,  far  less  for  every  consequence  de  pareils  doutes.  [/evidence 

that  may  be  deduced  from  them.  interne  est  la  base  de   toute  certitude 

ii/)  Bonnier,    Traitd    de*    I'  judiciare,  comme  de    toute  certitude 

6  and  7,  2d    Ed.      Locke  in  lot*,  en  ge*ndral ;  mais  e'e  1    une  base  in- 

cit.  ;'  i,  u       "internal  sense  "to  Big-  conteste'e  et  incontestable."     Bonnier, 

nify  "  reflection."  Preuvi   .      19,  2d  Ed, 

(e)  Principia  Philosophic,  pars  i,n.  (A)  Encyclop.   Britan.   1  I   Disserta- 

7.  tion,  pp.  n  ;.  M). 

(/)  Locke  'in  the   Human  Und  (i)  See   his   work  .   vol,    J,  p.  359 

standing,  bk.  4,  ch.  9,  j  ( renev,  17'' 

55,     "Que  (/.■)  Locke,  hl<.  2,  ch,   1  :  Bonniei 

I         r  d'un  juge  qui  me*<  onnaitrail  la  '1  1               Pi               8, 3d  Ed, 

I                               Mais  une  pareille  I  Lot  ke,  bk.  -,  ch.  t. 
11     est     inadmissible.      La 


fj  INTRODUCTION. 

that  faculty  through  which  the  mind  is  supplied  with 
ideas  by  any  sort  of  act  or  operation  of  its  own,  either 
on  ideas  received  directly  through  the  senses,  or  on 
other  ideas,  either  immediately  or  mediately  traceable 
to  ideas  so  received. 

5.  20.  The  human  mind  is  conversant  about  two 
classes  of  objects,  (w)  1.  The  relations  between  its 
ideas.  (11)  Under  this  head  comes  mathematical  and 
such  like  truths  ;  where  it  is  obvious  that  the  relations 
of  our  ideas  to  each  other  may  be  true,  although  there 
be  nothing  without  the  mind,  corresponding  to  the 
ideas  within  it.  The  properties  of  an  equilateral  tri- 
angle or  circle,  for  instance,  are  equally  indisputable 
whether  a  perfect  equilateral  triangle  or  perfect  circle 
can  be  found  in  the  universe  or  not  ;  (0)  and  astron- 
omers investigate  the  curves  which  bodies  would  de- 
scribe, if  acted  on  by  forces,  which,  so  far  as  we  are 
aware,  have  no  patterns  in  nature.  (/)  2.  Real  exis- 
tences :  i.  e.,  objects  existing  without  the  mind,  corre- 
sponding to  ideas  within  it.  (y) 

6.   30.  With  regard  to  intensity  of  persuasion ;  the 

(m)  Locke,  bk.  4.  ch.  1.  priiis    didicerit,    quam  limen  attingat 

(n)  Id.  bk.  4,  ch.  1,  §§  4,  5,  6.  geometric  ;    dein,   quomodo   per    has 

(0)  Id.  bk.  4,  ch.  4,   £  6  ;  De  Mor-  operationes  problemata  solvantur,  do- 

gan  on  Probabilities,  p.  9.  cet ;     rectas     ct     circulos    describere 

(/)  It   must  not,   however,  be   sup-  problemata  sunt,  sed  non  geometrica. 

posed  that   mathematical  truths  have  Ex  mechanica  postuiatur  horum  solu- 

not,    like    all    others,    their    ultimate  tio,   in   geometria    docetur   solutorum 

basis   in   experience.     As   the  highest  usus.     Ac    gloriatur   geometria    quod 

authority,    we    subjoin    the    following  tarn   paucis   principiis  aliunde   petitis 

from   Sir   Isaac    Newton's    Preface  to  tarn  multa  praestet.     Fundatur  igitu 

his      immortal    work,     "  Philosophiae  Geometria  in  praxi  mechanica." 
Naturalis      Principia     Mathematical'  (q)  Locke,  bk.  4.  ch.    1,  §  7.      Per- 

"  Linearum    rectarum    et    circulorum  haps,  in  order  to  avoid  prejudging  a 

descriptiones,    in    quibus    Geometria  highly    metaphysical      question,     we 

fundatur,  ad    Mechanicam    pertinent.  should    say  "objects  existing,  or  ap- 

Has   lineas   describere  geometria  non  pearing  to  our  faculties  to  exist,  with- 

docet,    sed    postulat.     Postulat    enim  out  the  mind,  &c  " 
ut    tiro    easdem    accurate    de.->cribere 


LVIDENCE  AND  PROOF  IN  GENERAL.         7 

faculties  of  the  human  mind  are  comprehended  in  the 
genera,  knowledge  and  judgment,  (r)      1.  By  "knowl- 
edge," strictly  speaking,  is  meant  when  we  have  an 
actual  perception  of  the  agreement  or  disagreement 
of  any  of  our  ideas  ;  (s)  and  it  is  only  to  such  a  per- 
ception that  the  term  "  certainty  "  is  properly  applica- 
ble. (/)     Knowledge  is  intuitive  when  this  agreement 
or  disagreement  is  perceived  immediately,  by  compar- 
son  of  the  ideas  themselves  ;  demonstrative,  when  it 
is  only  perceived  mediately,  i.e.,  when   it    is  deduced 
from    a    comparison  of  each,  with  intervening   ideas 
which    have    a    constant  and   immutable    connection 
with  them  ;  as  in  the  case  of  mathematical  truths   of 
which    the     mind    has    taken    in    the    proofs.      And, 
lastly,  when,  through   the   agency  of  our  senses,  we 
obtain  a  perception  of  the  existence  of  external  ob- 
jects, our  knowledge  is  said  to  be  sensitive.  (?/-)     But 
knowledge    and    certainty  are    constantly   used  in    a 
< >n<lary  sense,  which  it    is  important   not   to  over- 
look;   viz.,     as   synonymous   with    settled    belief    or 
reasonable   conviction:  as  when  we  say  that   such  a 
one   received    stolen  goods,  knowing    them    to    have 
been  stolen  ;  or  that  we  are  certain,  or  morally  cer- 
t.iin,  oi  the  existence  of  such  a  fact,  «Slc.  (x) 

7.  2.  "  Judgment,"  the  other  faculty  of  the  mind, 
though  inferior  to  knowledge  in  respect  of  intensity 
of  pei  11  1  ion,  plays  quite  as  importanl  a  part  in 
human  speculation  and  action,  and  as  connected  with 
jurisprudence,  demands  our  attention  even  more.  It 
is  the  faculty  by  which  our  minds  lake  ideas  to  agree 
or  disagree,  facts  or  propositions  to  be  true  or  false 


(r)  1          ,  bk.  4,  ch.  14,  §  4,  and  ch.  («)/</,  bk.  4,  ch.  2  and  1 1. 

1.  .:  7.  U)  Pufei  dorf,  Jus  Nat.  el  Gent.  lib. 

(/)  Id.  bk.  4,  ch.  1,  g  2.  I,  c.  2,  §    11,  Butler'     Analogy  of  Re 

(/)  Id.  bk.  4,  ch.  4,  §§  7,  18.  ligion,  [ntrodui  tion. 


8  INTRODUCTION. 

by  the  aid  of  intervening  ideas  whose  conneetion 
with  them  is  either  not  constant  and  immutable,  or  is 
not  perceived  to  be  so.  (jy)  The  foundation  of  this 
is  the  probability  or  likelihood  of  that  agreement  or 
disagreement,  of  that  truth  or  falsehood,  deduced  or 
presumed  from  its  conformity  or  repugnancy  to  our 
knowledge,  observation,  and  experience,  (z)  Judg- 
ment is  often  based  on  the  testimony,  of  others, 
vouching  their  observation  or  experience ;  (a)  but 
this  is  clearly  a  branch  of  the  former,  as  our  belief  in 
such  cases  rests  .on  a  presumption  of  the  accuracy  and 
veracity  of  the  narrators. 

8.  Actual  knowledge  and  certainty  extending  a 
comparatively  little  way,  men  are  compelled  to  resort 
to  judgment  and  to  act  on  probability,  in  by  far  the 
greater  number  of  their  speculations,  as  well  as  in  the 
transactions  of  life,  both  ordinary  and  extraordinary 
trivial  and  important.  (6')  The  faculty  of  judgment 
is  conversant  not  only  about  matters  of  fact,  which 
falling  under  the  observation  of  our  senses,  are  capa- 
ble of  being  proved  by  human  testimony,  but  also 
about  the  operations  of  nature,  and  other  things  be- 
yond the  discovery  of  our  senses  ;  (V)  and  it  thus 
embraces  the  enormous  class  of  subjects  investigated 
by  analogy  and  induction,  (d)  But  here  it  is  impor- 
tant to  remark,  that  on  the  same  matter  one  man 
may  have  knowledge  and  certainty,  while  another  has 
only  judgment  and  probability  ;  as  when  a  man, 
either  from   ignorance  of  mathematical  principles  or 

{}')  Locke,  bk.  4.  ch.  15,   §    r,  and  Analogy  of  Religion,  Introduction  ;  3 

ch.  14,  £  3.  Bentham's    Judicial    Evidence,    351  ; 

(z)  Id.  ch.  15,  §§   3  and  4  ;  ch.  14,  Gilb.  Ev.  3,  4,  4th  Ed. 

s.    4  ;    Butler's   Analogy    of  Religion,  (c)  Id.    bk.    4,   ch.    16,     §§    5    and 

Introduction.  12. 

(a)  Id.  ch.  15,  §  4.  \d)  Id.   §    12,   and   Bonnier,   Trait* 

(M.  Id.  bk.   4,  ch.  14,  §    I  ;  Butler's  des  Preuves.  g§  g.  et  sea.  2d  Ed. 


EVIDENCE  AND  PROOF  IN  GENERAL.  g 

laziness  to  go  through  the  proofs,  receives  a  mathe- 
matical truth  on  the  testimony  of  one  who  compre- 
hends it ;  in  this  case  he  has  only  got  moral  evidence 
of  that  truth,  while  his  informant  has  demonstrative 
proof,  (e) 

9.  Another  great  distinction  between  knowledge 
and  judgment  remains  to  be  pointed  out.  The  former 
is,  as  we  have  seen,  reducible  to  three  kinds ;  (/")  but 
to  classify  the  degrees  of  persuasion  resulting  from 
judgment  is-  wholly  beyond  human  power  ;  for  the 
extent  to  which  facts  or  propositions  may  be  in  con- 
formity with  our  antecedent  knowledge,  observation, 
or  experience,  necessarily  varies  ad  infinitum.  An 
attempt  has  been  made  to  express  some  of  the  shades 
of  judgment  by  the  terms  assurance,  confidence, 
confident  belief,  belief,  conjecture,  guess,  doubt,  wav- 
ering, distrust,  disbelief,  &c.  (g) 

10.  The  word  proof  seems  properly  to  mean  any- 
thing which  serves,  either  immediately  or  mediately,  to 
convince  the  mind  of  the  truth  or  falsehood  of  a  fact 
or  proposition  ;  (h)  and  as  truths  differ,  the  proofs 
adapted  to  them  differ  also,  (z)  Thus  the  proofs  of  a 
mathematical  problem  or  theorem,  are  the  intermedi- 
ate ideas  which  form  the  links  in  the  chain  of  demon- 
stration; the  proofs  of  anything  established  by  induc- 
tion, are  the  facts  from  which  it  is  inferred,  &c. ;  and 

the  proofs  of  matters  of  fact  in  general  are  our  senses, 
the  testimony  of  witnesses,  documents,  and  the  like. 
Some  authors  use  the  terms  "factum  probandum " 
and  "  factum  probans,"  to  designate  respectively  the 


bl      .]     <!i.  13,  $    I  ;  and  (/;)   I>.>m:it     I  -  I    Loi     Civtlei    'lans 

<h.  1  i.  ■;   | ;  I  <  ...■).!    !.-.  1  k  .  '•   tun  I,  pari    1.  liv.  3.  tit. 

(ij.  7U1   I  >  §  5 

2<1  Ed. 
(g)  Id.  bk.  4,  ch.  16,  §§  6-9.  (1)  1  '"in.,    .n  loc.  cit. 


ro  INTRODUCTION. 

fact  to  be  proved,  and  that  by  which  it  is  proved.  (/-) 
"  Proof "  is  also  applied  to  the  conviction  generated 
in  the  mind  by  proof  properly  so  called.  (/) 

II.  The  word  evidence  signifies,  in  its  original 
sense,  the  state  of  being  evident,  i.e.,  plain,  apparent 
or  notorious,  (w)  But  by  a  beautiful  and  almost 
peculiar  inflection  of  our  language,  (ii)  it  is  applied 
to  that  which  tends  to  render  evident  or  to  generate 
proof.  This  is  the  sense  in  which  it  is  commonly 
used  in  our  law  books,  and  will  be  used  throughout 
this  work.  Evidence,  thus  understood,  has  been  well 
defined, — any  matter  of  fact,  the  effect,  tendency,  or 
design  of  which,  is  to  produce  in  the  mind  a  persua- 
sion, affirmative  or  disaffirm ative,  of  the  existence  of 
some  other  matter  of  fact.  (#)  The  fact  sought  to  be 
proved  is  termed  the  "  principal  fact  : "  the  fact  which 
tends  to  establish  it,  "  the  evidentiary  fact."  (/>) 
When  the  chain  consists  of  more  than  two  parts,  the 
intermediate  links  are  principal  facts  with  respect  to 
those  below,  and  evidentiary  facts  with  respect  to 
those  above  them.  Such  we  propose  to  call  "  subal- 
ternate  "  principal  and  evidentiary  facts. 

(k)  3    Benth.    Jud.    Ev.  3  ,    Wills,  82,  &c,  2nd  Ed.     All  relating  to  evi- 

Circ.     Ev.     15,     136,     137,      153,     3d  dence,  as  the  term   is  used  in  English 

Ed.  law,  is  treated  of  by  the  Civilians  and 

(/)  Matthseus    de    Probationibus,    c.  Canonists  under  the  head  "  probatio," 

1,  N.  I  ;   lluberus,   Prselectiones  Juris  and  by  the  French  writers  under  that 

Civilis,    lib.  22.  tit.  3,  n.   2;  1   Greenl.  of "  preuve." 

Ev.  §  I,  7th  Ed.  («)   It    has    the    same    meaning    in 

(m)  Johns.  Diet.     The  Latin  "  evi-  Norman  French  ;    see  int.   al.   T.   18 

dentia,"  and   the  French  "evidence,"  Edw.  II,   bij,   tit.   Replegg.  ;  9  Edw. 

are    commonly    restricted   by    foreign  III.  5,  6,  pi.  IT. 

jurists,   to   those   cases  where  convic-  (0)  1    Benth.    Jud.    Ev.    17.     "  Evi- 

tion  is   produced  by  the   testimony  of  dence,"  Evidentia,   signifies   generally 

our  senses :  See  Quintilian,  Inst.  Orat.  any   proof,    be    it    testimony    of  men, 

lib.    6,    c.    2  ;  Calvin,    Lexic.    Jurid.  ;  records   or  writings  :    Cowel's   Inter- 

Steph.  Thesaur.    Ling.    Lat.  ;  Domat,  preter  ;  and   Les   Termes   de   la  Ley, 

Luis  Civiles,  part  i,  liv.  3,  tit.  6  ;  Bon-  See  Co.  Litt.  283,  a. 

nier   ''Vait^  des    Preuves,  §§    6,  8,  9,  (/>   1   Benth.  Jud.  Ev.  18. 


EVIDENCE  AND  PROOF  IN    GENERAL.       n 

12.  Confining  ourselves  henceforward  to  truths 
of  fact — the  proper  object  of  the  present  treatise — 
we  shall  first  direct  attention  to  some  divisions  of 
them,  which,  as  connected  with  jurisprudence  espe- 
cially, it  will  be  convenient  to  bear  in  mind.  In  the 
first  place,  then,  facts  are  either  physical  or  psycholog- 
ical, (g)  By  "  physical  facts  "  are  meant,  such  as  either 
have  their  seat  in  some  inanimate  being,  or  if  in  one 
that  is  animate,  then  not  by  virtue  of  the  qualities 
which  constitute  it  such  ;  while  "  psychological  facts," 
arc  those  which  have  their  seat  in  an  animate  being,  by 
virtue  of  the  qualities  by  which  it  is  constituted  animate. 
Thus,  the  existence  of  visible  objects,  the  outward  acts 
of  intelligent  agents,  the  res  gestae  of  a  lawsuit,  &c, 
range  themselves  under  the  former  class;  while  to  the 
latter  belong  such  as  only  exist  in  the  mind  of  an  in- 
dividual ;  as,  for  instance,  the  sensations  or  recollec- 
tions of  which  he  is  conscious,  his  intellectual  assent 
to  any  proposition,  the  desires  or  passions  by  which 
he  is  agitated,  his  animus  or  intention  in  doing  par- 
ticular acts,  eve.  Psychological  facts  arc  obviously 
incapable  of  direct  proof  by  the  testimony  of  wit- 
nesses— their  existence  can  only  be  ascertained  cither 
by  confession  of  the  part}-  whose  mind  is  their  scat — 
(/)  "  index  animi  sermo  " — (i)  or  by  presumptive  in- 
ference from  physical  facts.  (/) 

13.  There  are  two  other  divisions  of  facts  which 
deserve  to  be  noted  One  is,  that  they  arc  either 
events  or  states  of  things,  (11)  By  an  "event"  is 
meant  some  motion  or  change,  considered  as  having 
come  aboul  either  in  the  course  of  nature,  or  through 

(,/)  1  Benth.  Jud.  Ev.  45  (-0  5  Co.  118  b. 

(r)    Mascardus    de    Prooationib  d)    Ma  •  ird.  de    Prob.  Concl.  <)\; 

Concl.    309  .  1    Benth.   Jud.    Ev.  02,  1  Benth.  Jud.  Ev.  82,  145;  3  f&  6- 
145  ;  3.  Id.  6.  (h)  Id.  47. 


12  INTRODUCTION. 

the  agency  of  human  will  ;  in  which  latter  case  it  is 
called  "  an  act,"  or  "  an  action/'  The  fall  of  a  tree  is 
"  an  event,"  the  existence  of  a  tree  is  a  "  state  of 
things  ; "  but  both  are  alike  "  facts."  (x)  The  remain- 
ing division  of  facts  is  into  positive  or  affirmative, 
and  negative:  (y)  a  distinction  which,  unlike  both  the 
former,  does  not  belong  to  the  nature  of  the  facts 
themselves,  but  to  that  of  the  discourse  which  we 
employ  in  speaking  of  them,  (s)  The  existence  of  a 
certain  state  of  things  is  a  positive  or  affirmative  fact, 
the  non-existence  of  it  is  a  negative  fact.  But  the 
only  really  existing  facts  are  positive  ones — for  a  neg- 
ative fact  is  nothing  more  than  the  non-existence  of  a 
positive  fact ;  and  the  non-existence  of  a  negative 
fact,  is  equivalent  to  the  existence  of  the  correspond- 
ent and  opposite  positive  fact,  (a) 

14.  Our  persuasion  of  the  existence  or  non-exist- 
ence of  facts  has  its  source,  or  efficient  cause,  either  in 
the  operation  of  our  own  perceptive  or  intellectual 
faculties,  or  in  the  operation  of  the  like  faculties  on 
the  part  of  others,  evidenced  to  us  either  by  discourse 
or  deportment.  The  former  of  these  may  be  called 
evidence  ab  intra  ;  the  latter,  evidence  ab  extra,  (b) 
The  immense  part  which  evidence  ab  extra  bears  in 
forensic  procedure,  as  well  as  in  almost  everything 
else,  makes  it  advisable  that  we  should  consider, 
somewhat  at  large,  the  grounds  of  belief  in  human 
testimony,  and  the  dangers  to  be  avoided  when  deal- 
ing with  it. 

15.  The  existence  of  a  strong  tendency  in  the 
human  mind,  to  accept  as  true  what  has  been  related 
by  others  is  universally  admitted,  and  is  confirmed  by 
every  day's  observation  ;  and  it  may  be  laid  down  as 
equally  certain,  that  one  cause  of  this  tendency  is  our 

<x)  1  Benth.  Jud.  Ev.  43      {y)  Id.  49.     (2)  Id.     (a)  Id.  49.  50.     (*)  Id.  51   52, 


EVIDENCE  AND  PROOF  IN  GENERAL.         13 

experience  of  the  great  preponderance  of  truth  over 
falsehood,  in  human  testimony  taken  as  a  whole. 
But  whether  this  is  the  sole  cause  has  given  rise  to 
difference  of  opinion.  Writers  on  natural  law  describe 
man  as  endowed  by  nature  with  a  sort  of  moral  in- 
stinct, which  prompts  him  to  act  in  certain  cases 
where  vigor  and  expedition  are  required,  and  where 
the  faculties  of  reason  and  reflection  are  either  minia- 
tured, or,  if  matured,  would  be  too  slow  ;  (V)  and 
most  authors  think,  that  a  tendency  to  believe  the 
statements  of  others  is  to  be  found  among  the  opera- 
tions of  this  instinct.  Man,  they  argue,  is  so  consti- 
tuted, that  the  knowledge  which  he  can  acquire 
through  his  personal  experience  is  necessarily  very 
limited,  and,  unless  by  some  effective  provision  of 
nature  he  were  enabled,  and  indeed  compelled,  to 
avail  himself  of  the  knowledge  and  experience  of 
others,  the  world  could  neither  be  governed  nor  im- 
proved. The  instinctive  character  of  the  tendency  in 
question,  they  say,  appears  from  the  undoubted  fact 
that  it  is  immeasurably  strongest  in  childhood,  and 
diminishes  when  experience  has  made  us  acquainted 
with  falsehood  and  deception,  (d)  Others,  however, 
deny  all  this  :  (c)  and  it  has  been  urged  that  the  im- 
plicit belief  so  obs<  rvable  in  children,  is  owing  to 
their  experience  being  all,  or  nearly  all,  on  one  side — 
namely,  in  favor  of  tin-  truth  of  what  they  hear.  (/") 

16.   However  this  may  be,  it   is  certain  that  the 
enunciation  of  truth  and  eloignmenl  of  willful  false- 
hood,   among     men    in    their    intercourse    with    each 
other,  are  secured   by  three  guarantees  or  sanctions— 
the  natural   sanction,  the   moral    or   popular   sanction 

(c)  Burlamaqui,  Principe*  du  Droit  (t)  1     Benth,    Jud,    Ev.    127-  u< 

dc  la  Natun               l  >en  .  pt.  2.  ch.  3.  I              Iur.il   and    Political  I'liilow 

!■/)  1  I  in  'ill.   I  v    .    ■   7th  Ed.,  and  pliy,  bk.  1,  ch.  5. 

the  authorities  there  cited.  (/)  Id.  129,  130 


U  INTRODUCTION. 

and  the  religious  sanction,  {g)  And  first,  of  the 
natural  sanction.  Mutual  confidence  between  man 
and  man  being  indispensable  to  the  acquisition  of 
knowledge,  the  happiness  of  our  race,  and,  indeed,  to 
the  very  existence  of  society,  the  great  Creator  has 
planted  the  springs  of  truth  very  deep  in  the  human 
breast.  According  to  Bentham,  the  natural  sanction 
is  altogether  physical  in  its  character,  arising  out  of 
the  love  of  ease, — memory  being  prompter  than  in- 
vention. (Ji)  "  To  relate  incidents  as  they  have  really 
happened,"  he  says,  (7)  "is  the  work  of  the  memory: 
to  relate  them  otherwise  than  as  they  have  really 
happened,  is  the  work  of  the  invention.  But,  gener- 
ally speaking,  comparing  the  work  of  the  memory 
with  that  of  the  invention,  .the  latter  will  be  found  by 
much  the  harder  work.  The  ideas  presented  by  the 
memory  present  themselves  in  the  first  instance,  and 
as  it  were  of  their  own  accord  :  the  ideas  presented 
by  the  invention,  by  the  imagination,  do  not  present 
themselves  without  labor  and  exertion.  In  the  first 
instance  come  the  true  facts  presented  by  the  mem- 
ory, which  facts  must  be  put  aside  :  they  are  con- 
stantly presenting  themselves,  and  as  constantly  must 
the  door  be  shut  against  them.  The  false  facts,  for 
which  the  imagination  is  drawn  upon,  are  not  to  be 
got  at  without  effort  ;  not  only  so,  but  if,  in  the 
search  made  after  them,  any  at  all  present  themselves, 
different  ones  will  present  themselves  for  the  same 
place :  to  the  labor  of  investigation  is  thus  added  the 

(g)  i  Benth.  Jud.  Ev.  198;  5  Id.  635,  and  oaths,  which  are  only  an  applica- 

636.    See  Bonnier,  Traite  des  Preuves,  tion    of  the   religious  sanction,   being 

220,221,  222,  2d  Ed.      For  the  rea-  both  artificial  in  their  nature,  will   bo 

sons  stated  in  the  text, we  have  adopted  more  properly  considered   in  the  next 

the   phrase    ''  natural    sanction,"  used  Part, 

by  Bonnier,  in  preference  to   "  physi-  (A)  2  Id.  2. 

cai  sanction  "  used  by  Bentham.    The  (?)  1    Id.    202,    203.      See    also    1 

legal   or   political    sanction    of   truth,  St?rk.  Ev.  14,  3d  Ed.  &  Id.  20,  4th  Ed 


EVIDENCE  AND  PROOF  IN  GENERAL.         15 

labor  of  selection."  It  is,  however,  very  doubtful 
whether  this,  although  true  as  far  as  it  goes,  embraces 
the  full  extent  of  the  natural  sanction.  Bonnier,  in 
his  Traite  des  Preuves,  (k)  severely  attacks  the  pas- 
sages just  quoted,  and  says  that  the  natural  sanction 
for  the  veracity  of  witnesses,  is  to  be  found  in  a  cer- 
tain powerful  feeling  in  the  human  mind,  which  im- 
pels man  to  speak  the  truth,  and  makes  him  do 
violence  to  himself  whenever  he  betrays  it ;  that  the 
true  and  the  just  are  two  poles  toward  which  the 
human  mind,  when  uncorrupted,  continually  points. 
And    somewhat    similar   language    is    used    by  Lord 

Bacon.  (/)  In  another  part  of  the  same  work,  how- 
ever, (w)  Bentham  mentions  the  sympathetic  sanc- 
tion as  a  branch  of  the  natural  one,  describing  it  to  be 
the  feeling  by  which  we  are  deterred  from  falsehood, 
by  ngret  for  the  pain  and  injury  which  it  may  cause 

►thers.  He  also  considers  the  imperfection  of  the 
natural  sanction,  to  consist  in  its  being  better  calcu- 
lated to  prevent  falsehood  in  toto,  than  to  secure  cir- 
cumstantial truth  in  particulars  ;  (ji)  which,  taking 
his  definition  of  that  sanction,  is  no  doubt  the  case. 

17.  The  moral  sanction  may  be  described  in  a 
word.  Men  having  found  the  advantages  of  truth 
and  the  inconveniences  of  falsehood  in  their -mutual 
intercourse,  and,  perhaps,  being  further  actuated  by 
the  reflection,  that  truth  is  in  conformity  with  the 
will  of  God  and  the  laws  of  nature,  have  by  general 
eon -1  nt  affixed  the  brand  of  disgrace  on  a  voluntary 
departure  from  it;  and  hence,  as  observed  by  several 

(k)  §  22r,  2<1  Ed.    In  another  place,  n'arrivc   que   trop  souvent  que  ses  && 

§  t:,2'l  Ed.,  he  says,  "  S'il  y  a  line  ten-  claralions  soient  mensongercs." 

dance  naturelle  deftesprita  versle  vrni,  (/)  I-  ,  ay  on   l  ruth. 

comme  d                vers   le  centre  del*  (»•»)  5  Benth.  Jud,  Kv.  636. 

terrc,   I'll                 !:int  iihrc,  pcut  ob<  il  («)  I  Id.  207,  208. 
ou  ne  pas  obeir  a  cctte  tendance,  et  il 


i5  INTRODUCTION. 

authors,  the  infamy  attached  to  the  word  "  liar."  (o) 
A  great  infirmity  of  the  moral  sanction  is,  that  deriv- 
ing, as  it  does,  all  its  force  from  the  value  men  set  on 
the  opinions  of  others,  it  naturally  teaches  chem  to 
conceal  their  own  faults  from  public  view,  even  at  the 
sacrifice  of  truth.  (/) 

1 8.  Lastly,  there  is  the  religious  sanction  ;  which 
is  founded  on  the  belief  that  truth  is  acceptable,  and 
falsehood  abhorrent  to  the  Governor  of  the  Universe, 
and  that  He  will,  in  some  way,  reward  the  one  and 
punish  the  other.  All  forms  of  religious  belief  ac- 
knowledge this  great  principle ;  and  the  following 
argument,  among  others,  has  been  used  to  show  that 
it  is  a  precept  of  natural  religion.  "  We  are  so  con- 
stituted, that  obedience  to  the  law  of  veracity  is  abso- 
lutely necessary  to  our  happiness.  Were  we  to  lose 
either  our  feeling  of  obligation  to  tell  the  truth,  or  our 
disposition  to  receive  as  truth  whatever  is  tojd  to  us, 
there  would  at  once  be  an  end  to  all  science  and  all 
knowledge,  beyond  that  which  every  man  had  ob- 
tained by  his  own  personal  observation  and  experi- 
ence. No  man  could  profit  by  the  discoveries  of  his 
contemporaries,  much  less  by  the  discoveries  of  those 
men  who  have  gone  before  him.  Language  would  be 
useless,  and  we  should  be  but  little  removed  from  the 
brutes.  Every  one  must  be  aware,  upon  the  slightest 
reflection,  that  a  community  of  entire  liars  could  not 
exist  in  a  state  of  society.  The  effects  of  such  a 
course  of  conduct  upon  the  whole,  show  us  what  is 
the  will  of  God  in  the  individual  case."  (y)  The 
divine  punishment  for  falsehood  being  prospective  and 

(p)  See  Pufend)rf,  Jus  Nat.  et  Gent.  {q)  Wayland's  Elements   of    Moral 

lib.  4,   cap.    i,  §   8  ;  Benth.  Jud.  Ev,  Science,  p.  272,  London.     See  also  a 

bk.  1,  cb.  11,  sect.  5,  and  Lord  Bacon's  paper  by  Addison,  in  the  "  Spectator  " 

Essay  on  Truth.  No.  507. 

(J>)  1  Benth.  Jud.  Ev.  212-216. 


EVIDENCE   AND  PROOF  IN    GENERAL.      i; 

invisible,  detracts  much  from  the  weight  of  this 
sanction  ;  and  perjury  is  often  committed  by  persons 
whose  religious  faith  can  not  be  doubted,  but  who  pre- 
sumptuously hope,  either  by  their  subsequent  good 
conduct  or  some  other  means,  to  efface  its  guilt  in  the 
eyes  of  Heaven. 

1 9.  The  effect  of  these  three  sanctions  is  much 
greater  l  han  might  at  first  sight  be  supposed.  They  are 
in  continual  operation  as  efficient  causes  for  the  pro- 
duction of  truth,  and  rendering  its  enunciation  natural 
and  habitual  to  men  ;  while  every  incentive  to  false- 
hood can  only  be  looked  upon  as  a  species  of  disturb- 
in  .■  force,  which  acts  occasionally  and  exceptionally. 
( )f  few  persons  indeed  can  it  be  said,  that  their  adher- 
ence to  truth  is  undeviating  at  all  times  ;  with  many 
its  observance  appears  to  depend  on  circumstance, 
accident,  or  caprice  ;  with  some  the  practice  of  lying 
seems  inveterate  ;  while  certain  classes  of  persons 
systematically,  and  as  it  were  on  principle,  withhold 
the  truth  from  other  classes  on  particular  subjects. 
But  after  every  abatement  has  been  made-  for  aberra- 
tions, the  quantity  of  truth  daily  spoken  immeasurably 
exceeds  that  of  falsehood;  (r)  and  Bentham  even 
goes  so  far  as  to  assert,  that  "from  the  mouth  of  the 
most  egregious  liar  thai  ever  existed,  truth  must  have 
issued  ;it  leasl  a  hundred  times  for  once  that  willful 
falsehood  has  taken  its  place."  (i) 

20.  It  is,  however,  of  the  utmost  importance  to 
observe,  thai  any  of  those  spring  i  of  action  which  we 

Bonnier,     [Vai  1  Still  a  wt     enabli  'I   to  obtain 

§  r5,  2nd  Ed.  the  information  he  w  for  r<   pi    I 

(s)  5  Denth.  Jud.  Ev.  82.     We  have  ing    it,    by   qui  then    upon 

:        Duntry,  the  in-  ii  I    fa<  ts,  « hen 

habitant  lich  purpi  the   truth,   naturally  oozing  out,  gup* 

tetnati    illy  ga\      I  to  all  plied  him  with  materials  for  arriving 

questions    re  pecting   its   topography,  at  the  knowli  ight. 

2 


18  INTRODUCTION. 

have  denominated  "  sanctions  of  truth,"  may  be  found 
on  the  wrong  side,  i.e.,  producing  falsehood  instead 
of  truth.  If  the  natural  sanction  rests  solely  on  a 
love  of  ease,  that  love,  while  it  represses  the  invention 
of  false  facts,  equally  prevents  the  taxing  the  memory 
to  give  a  perfect  narrative  of  what  has  been  wit- 
nessed ;  and  if  supposed  to  spring  from  a  love  of 
truth  and  justice,  the  party  called  on  to  give  evidence 
may  consider  the  ends  of  justice  advanced  by  with- 
holding the  truth  ;  as,  for  instance,  where  the  disclos- 
ing it  will  induce  the  condemnation  of  a  criminal 
whose  prosecution,  though  strictly  legal,  he  deems 
morally  unjust,  or  whose  future  good  behavior  he 
thinks  will  be  better  ensured  by  escape  than  by  pun- 
ishment. But  of  the  sanctions  in  question,  none  is 
so  frequently  divided  against  itself  as  the  moral. 
Conduct  condemned  by  one  portion  of  society  is 
often  applauded  by  the  rest,  and  persons  desirous  of 
the  good  opinion  of  certain  classes,  are  often  satisfied 
to  attain  it  at  the  cost  of  sinking  themselves  in  that 
of  others,  and  tell  or  suppress  the  truth  as  may  best 
advance  that  object.  "  The  credibility  of  a  witness," 
says  the  Marquis  Beccaria,  (/)  "  may  be  in  some  de- 
gree lessened  when  he  is  member  of  some  private 
society,  whose  usages  and  maxims  are  either  not  well 
known,  or  different  from  those  of  the  public.  Such  a 
man  has  not  only  his  own  passions,  but  those  of  other 
people."  Even  the  religious  sanction  has  been  en- 
listed in  the  cause  of  falsehood.  Particular  forms  of 
religion  allow  it  in  certain  cases ;  (u)  and  the  truth 

(/)  "  La  credibility  di  un  testimonio  nomo  ha   non  solo  le   proprie,  ma  le 

pud     essere    alcune    volte    sminuita  altrui  passioni." — Beccaria,  Dei  Delit- 

quando    egli    sia    membro    di    alcuna  ti  e  delle  Pene,  §  8. 
society   private.,    di    cui    gli    usi   e    le  («)  See   Halhed's  Code  of  Gentoo 

massime  sieno   o  non  ben  conosciute,  Laws,  &c,  cited  infra,  bk.  2,  pt.  I,  ch. 

o    diverse    dalle    publiche.      Un    tal  2.     Whether   a  violation    of  truth  is 


EVIDENCE  AND    PROOF  IN  GENERAL.      19 

has  often  been  sacrificed  by  religious  persons  in  order 
to  avoid  bringing  scandal  on  their  creeds. 

21.  The  credit  due  to  human  testimony,  assuming 
that  we  correctly  understand  the  language  employed, 
is  the  compound  ratio  of  the  witness's  means  of  ac- 
quaintance with  what  he  narrates,  and  of  his  intention 
to  narrate  it  truly.  (V)  In  estimating  the  latter, 
three  things  are  to  be  attended  to.  1.  Whether  he 
labors  under  any  interest  or  bias,  which  may  sway 
him  to  pervert  the  truth,  i  His  veracity  on  former 
occasions — evidenced  either  by  our  own  experience  or 
credible  truth.  3.  His  manner  and  deportment  in 
delivering  his  testimony.  "  Interrogabit  judex,"  says 
One  of  the  canonists,  (jj/)  "  testes  in  qualibet  causa, 
eosque  diiigentur  examinabit,  de  singulis  circumstan- 
tiis  diligenter  inquirans,  de  causis  videlicit,  de  personis, 
loco,  tempore,  visu,  auditu,  scientia,  credulitate,  fama, 
et  certitudine,  ca?terisque,  quae  ad  rem  facere,  et  nego- 
tio  convenire  existimabit.  Illud  quoque  subtiliter 
animadvertere  non  omittet,  quo  vultu,  qua  constant ia, 
quave  animi  trepidatione  testes  deponant  ;  cum  inter- 
dum  ex  his,  vel  ipsis  invitis  tcstibus,  magis  quam  ex 
verborum  serie  rerum  Veritas  elucescat"  "A  consid- 
eration of  the  pemeanor  of  the  witness  upon  the 
trial,"  says  one  of  our  books,  (<sr)  "and  of  the  manner 
of  giving  his  evidence,  both  in  chief  and  upon  cross- 
examination,  is  oftentimes  not  less  material  than  the 
1     timony  itsel£     An  overforward  and  hasty  zeal  on 

allowable    ID    any.  and    if   so,  in  what       Ration    to    tell   truth    is   the    rule  ;   tlw 

cases,  hai  been   much    considerd    by  I  0  falsehood,  if  such  exists,  tht 

and    divines.     See    Puffen-  exception, 
dorf,  Jus  Natur.  et  I  tent.  lib.  4,  cap.  1 .  ee  infra,  §  73,  an<l  notes. 

;  et  seq.   lientham's  Jnd.    Kv.    bit.  (  v)     Lancelottus,    Institution's    Ju- 

I,  ch.   11,  sec.    5;    Paley'a    Moral   and  ri      '    -in.  1,    lil>.    3,    tit.    14.    §§    11, 

Political  Philosophy,  bk.  3,  pi.   1,  ch.  12. 

15,  &c.  ;  and  hk.  i,  ch.  5.     It  is,  how-  |    1    Stark.    Kv.    547,   3d  Ed.;  Id. 

-  -   •miversally  agreed,  that  the  ohli-  822,  823,  4th  Ed. 


C'J 


TNTRi  ]DUCriOA 


the  part  of  the  witness,  in  giving  testimony  which 
will  benefit  the  party  whose  witness  he  is,  his  exagger- 
ation of  circumstances,  his  reluctance  in  giving 
adverse  evidence,  his  slowness  in  answering,  his 
evasive  replies,  his  affectation  of  not  hearing  or  not 
understanding  the  question,  for  the  purpose  of  gaining 
time  to  consider  the  effect  of  his  answer  ;  precipitan- 
cy in  answering,  without  waiting  to  hear  or  to  under- 
stand the  nature  of  the  question  ;  his  inability  to 
detail  any  circumstances  wherein,  if  his  testimony 
wrre  untrue,  he  would  be  open  to  contradiction,  or 
his  forwardness  in  minutely  detailing  those  where  he 
knows  contradiction  to  be  impossible  ;  an  affectation 
of  indifference  ;  are  all  to  a  greater  or  less  extent 
obvious  marks  of  insincerity.  On  the  other  hand,  his 
promptness  and  frankness  in  answering  questions 
without  regard  to  consequences,  and  especially  his 
unhesitating  readiness  in  stating  all  the  circumstances 
attending  the  transaction,  by  which  he  opens  a  wide 
field  for  contradiction  if  his  testimony  be  false,  are,  as 
well  as  numerous  others  of  a  similar  nature,  strong 
internal  indications  of  his  sincerity."  This,  however, 
must  be  taken  with  some  qualification.  "  A  witness." 
says  a  modern  writer,  (a)  "  may  be  very  honest, 
although  his  demeanor  is,  in  some  respects,  open  to 
censure,  and  deserves  rebuke.  Constitution  of  mind, 
habit,  manner  of  life,  may  give  him  a  coarse,  blunt 
tongue,  and  a  manner  in  appearance,  yet  not  meant  to 
be,  uncivil  or  disrespectful.  Such  a  rough,  unrefined 
nature  or  carriage  may  well  consist  with  a  habit  of 
speaking  the  truth,  with  an  abhorrence  of  falsehood, 
and  a  wish  and  determination  to  give  true  evidence. 
....  Demeanor  consisting  in  confusion,  embarrass- 
ment, hesitation   in  replying  to  questions,  and  even 

(a)  Ram  on  facts,  pp.  183-184. 


EVIDENCE   AND   PROOF  IN  GENERAL.       21 

vacillating-  or  contradictory  answers,  are  not  necessa- 
rily a  proof  of  dishonesty  in  a  witness,  because  this 
deportment  may  arise  from  bashfulness,  or  timidity, 
and  may  be  the  natural  and  inevitable  effect  of  an 
examination  by  a  skillful,  practiced,  perhaps  unscrup- 
ulous advocate  whose  aim  in  his  questions  is,  to  en- 
tangle, entrap,  and  stupefy  the  witness,  and  cause  him 
to  say  and  unsay  anything  or  everything.  It  may  not 
be  good  behavior  in  a  witness,  to  suffer  his  eyes  to 
wander  about  the  court  while  he  is  under  examina- 
tion, but  this  conduct  may  not  be  unnatural  in  the 
midst  perhaps  of  an  entirely  new  scene  to  him  ;  and 
the  distraction  of  mind  occasioned  by  that  employ- 
ment of  his  eyes  may  well  cause  him,  on  returning  to 
his  duty,  to  answer  hastily,  and. without  considera- 
tion. But  in  all  this  there  may  be  no  intentional 
disrespect  to  the  court  ;  and  the  witness,  notwith- 
-1, Hiding,  may  be  a  very  honest  one.  Again,  it 
happens  10  all  persons  occasionally,  without  thought 
to  use  one  word  for  another,  making  the  sense  very 
different  from  what  was  intended  :  unconsciously  we 
that  we  did  not  mean  to  say.  In  like  manner,  a 
witness  may  inadvertently  contradict  himself." 

22.  The  capacity  of  a  party  to  give  a  faithful 
account  of  things  depends  on — 1.  The  opportunities 
he  has  had  of  observing  the  matters  he  narrates.  2. 
Mis  pow<  1  .  either  natural  or  acquired,  of  perception 
ami  observation  ;  and  here  it  is  important  to  asi  ertain 
whether  he  is  a  discreet,  sober-minded  person,  or  im- 
inative  and  imbued  with  a  love  of  the  marvelous, 
and  al  o  whether  he  lies  under  any  bias  likely 
to  di  tot  his  judgment.  3,  Whether  the  circum- 
stances he  narrates  were  likely  to  attracl  his  attention, 
in  consequence  of  their  importance,  either  in;  i  ci- 
cally  or  relation  to  himself.     "  Where  the  chem- 


22  INTRODUCTION. 

ist  and  the  physician  see  a  dangerous  poison,  the 
kitchen-maid  may  see  nothing  more  than  an  immate- 
rial flaw  in  one  of  her  pans,  the  cook  may  behold  an 
innocent  means  of  recommending  herself  to  the 
palate  through  the  medium  of  the  eye.  Where  the 
botanist  sees  a  rare,  and  perhaps  new,  plant,  the  hus- 
bandman sees  a  weed :  where  the  mineralogist  sees  a 
new  ore,  pregnant  with  some  new  metal,  the  laborer 
sees  a  lump  of  dirt,  not  distinguishable  from  the  rest, 
unless  it  be  by  being  heavier  and  more  troublesome." 
(<£)  4.  PI  is  memory  ;  and  here,  whether  the  trans- 
action is  ancient  or  recent,  whether  his  recollection 
has  been  refreshed  by  memorandum,  conversation, 
&c. 

23.  The  probative  force  arising  from  concurrent 
testimonies,  is  the  compound  result  of  the  probabilities 
of  the  testimonies  taken  singly,  (c)  But  when  testi- 
monies conflict  or  clash  with  each  other,  we  must 
form  the  best  conclusion  we  can  as  to  their  relative 
values. 

24.  There  are  two  things  which  must  never  be 
lost  sight  of  when  weighing  testimony  of  any  kind. 
1.  The  consistency  of  the  different  parts  of  the  narra- 
tion. 2.  The  possibility  or  probability,  the  impossi- 
bility or  improbability,  of  the  matters  related, — which 
afford  a  sort  of  corroborative  or  counter-evidence  of 
those  matters.  By  probability,  as  already  observed, 
(d)  is  meant  the  likelihood  of  anything  to  be  true, 
deduced  from  its  conformity  to  our  knowledge,  ob- 
servation, and  experience.  When  a  supposed  fact  is  so 
repugnant  to  the  laws  of  nature,  assumed  for  this 
purpose    to    be    fixed    and    immutable,    (i)    that   no 

(i)  I  Benth.  Jud   Ev.  164-5.  M     1  ne    judicial     proceedings     of 

(c)  See  infra,  §  73,  and  notes.  modern  times,  are  conducted  on  the 

(d)  Supra,  §  7.  assumption  that  the  laws  of  nature  are 


EVIDENCE   AND   PROOF  IN  GENERAL.       23 

amount  of  evidence  could  induce  us  to  believe  it, 
such  supposed  fact  is  said  to  be  impossible,  or  physi- 
cally impossible.  There  is  likewise  moral  impossibil- 
ity, which,  however,  is  nothing  more  than  a  high  de- 
gree of  improbability. 

25.  As  the  knowledge,  observation,  and  experi- 
ence of  men  vary  in  every  imaginable  degree,  their 
notions  of  possibility  and  probability  might  naturally 
be  expected  to  differ ;  and  we  continually  find  that, 
not  only  are  the  most  opposite  judgments  formed  as 
to  the  credence  due  to  alleged  facts,  but  that  a  fact 
which  one  man  considers  both  possible  and  probable, 
another  holds  to  be  physically  impossible.  (/")     With 

pect  to  this  kind  of  impossibility,  our  notions  will 
be  more  or  less  accurate  according  to  our  acquaint- 
ance with  the  laws  of  nature  ;  for  many  phenomena 
in  apparent  violation  of  her  laws  have  been  found,  on 
examination,  to  be  the  regular  consequences  of  others 
previously  unknown.  The  story  of  the  king  of  Siam 
lias  often  been  quoted,  who  believed  everything  the 
Dutch  ambassador  told  him  about  Europe,  until  he 
mentioned  that  the  water  there  in  winter  became  so 
hard  that  men,  horses,  and  even  an  elephant,  could 
walk  on  it,  which  that  monarch  a1  once  pronounced  a 
palpable  falsehood  (g)  About  three  centuries  and 
a  half  ago,  when  Columbus  declared  his  conviction 
thai  the  East  Indies  could  be  reached  by  sailing  west- 
ward, and  offered  to  make  the  trial,  the   learned  world 

fixed  and  immutable;  not  from  dig-  tg. — A  plausible  bul  chain 

belief  in  miraculous  interposition,  but  >>!  presumtive  evidence  tends  t < >  indi- 

ause  such  inti  n   i*  unques-  cati    \    is  the  person  who  committed 

tionably  rare,  and  it  would  be  danger-  a  crime  at    B.     Mi    guilt   maj    leem 

ous  in  die  highest  degree,  if  tribunals  probable  to  C,  ;   bul    D.,  !■"..,  and    F 

were  allowed   to  ad  mpposed  know  that  it  is  impos  ible;  for  at  t lie 

occurrence  as  a   principle    of   Hecis  moment   ilie  crime  was   perpetrated 

ion.  they  were  at  (!.,  and    aw  A,  *)iere. 
(/)  He  may  even  know  it  to  be  so.  (g)  Locke,  1>k.  4,  cli.  15,  §  5. 


24  INTRODUCTION. 

was  prepared  to  demonstrate  its  physical  impossibility  ; 
(//)  while  similar  language  has,  in  our  own  day,  been 
applied  to  the  project  for  effecting  the  passage  of  the 
Atlantic  Ocean  by  steam.  So  the  assertion  that 
England  could  be  crossed  in  a  carriage  traveling  at 
the  rate  of  sixty  miles  an  hour ;  or  that  a  messsge 
could,  with  the  speed  of  lightning,  be  transmitted 
through  many  miles  of  sea,  at  the  depth  of  twenty  or 
thirty  fathoms,  would,  for  many  ages  past,  by  the 
great  bulk  of  mankind  at  least,  have  been  pronounced 
a  lie  too  gross  to  require  confutation  ;  and  the  bare 
suggestion  that  a  message  might  be  transmitted  in 
like  manner  from  one  shore  of  the  Atlantic  to  the 
other,  would  either  have  consigned  a  man  to  confine- 
ment as  a  hopeless  lunatic,  or  sent  him  to  the  stake 
as  an  emissary  of  the  powers  of  darkness.  And, 
lastly,  different  persons  may  consider  the  same  thing 
possible,  or  even  probable,  for  very  opposite  reasons. 
In  the  infancy  of  aerostation,  when  its  attempts  were 
watched  with  anxiety  by  the  learned,  and  ridicule  by 
the  ignorant,  some  Japanese,  on  seeing  a  balloon 
ascend  at  St.  Petersburg,  expressed  no  surprise  what- 
ever ;  and  being  asked  the  cause  of  their  unconcern, 
said  it  was  nothing  but  magic,  and  in  Japan  they  had 
practitioners  in  magic  in  abundance,  (z) 

26.  Before  dismissing  this  subject,  it  is  to  be  ob- 
served that  falsehood  in  human  testimony  presents 
itself  mush  more  frequently  in  the  shape  of  misrepre- 
sentation,   incompleteness,  or  exaggeration,  than  of 

(//)    See  the   Life  of  Columbus,  by  (*)    3    Benth.    Jud.    Ev.    315.     The 

Washington  Irving,  vol.  i.  bk.  2,  ch.  4.  Chapter  on  Improbability  and  Impos- 

A  curious  fac-simile-  of  the  map  of  the  sibility  in  Bentham's  work  on  Judicial 

world,  as  during  the   middle   ages   it  Evidence — bk.   5,  ch.    16 — though   an 

was  supposed  to  exist,  is  given  in  Mil-  unfinished  sketch,   and    by  no  means 

ler's     Testimony    of    the    Rocks,    p.  free     from     error,     will     repay     pe 

363.  rusal. 


EVIDENCE  AND  PROOF  IN  GENERAL.        25 

total  fabrication.  (/)  "Qui  non  libere  veritatem 
pronunciat,  proditor  veritatis  est."  (Jz)  A  lie  is  never 
half  so  dangerous  as  when  it  is  woven  up  with  some 
indisputable  verity  ;  and  hence  the  use  of  the  com- 
prehensive form  of  oath  administered  in  English 
courts  of  justice,  that  the  deposing  witness  is  to  tell 
"  the  truth,  the  whole  truth,  and  nothing  but  the 
truth."  So,  an  extensive  field  of  mischief  is  opened 
by  mere  exaggeration  ;  for  "  as  truth  is  made  the 
groundwork  of  the  pictuie,  and  fiction  lends  but  light 
and  shade,  it  often  requires  more  patience  and  acute- 
ness  than  most  men  possess,  or  are  willing  to  exercise, 
to  distinguish  fact  from  fancy,  and  to  repaint  the  nar- 
rative in  its  proper  colors.  In  short,  the  intermixture 
of  truth  disarms  the  suspicion  of  the  candid,  and 
sanctions  the  ready  belief  of  the  malevolent."  (/) 

27.  There  are  several  divisions  of  evidence  which 
although  in  some  degree  arbitrary,  it  will  be  found 
useful  to  bear  in  mind.  In  the  first  place,  then, 
evidence  is  either  direct  or  indirect  ;  according  as  the 
principal  fact  follows  from  the  evidentiary, — the  factum 
probandum  from  the  factum  probans — immediately  or 
by  inference,  (in)     In  jurisprudence,  however,  direct 

(j)    This    is    particularly    the   case  lunga   ]>iu    facile   una   calunnia   snlle 

wh<  n  v.  repeated.     "  II  tuono,  parole  che  sulk-  azioni  di  un  uomo." — 

il  gesto,  tutti  l:  ccaria,    Dei     Delitti  e   delle    Pene, 

gli  uomini  §  S. 
attacano  alle                                   no  <•         (/•)  11  Co.  83  a  ;  4  In  t.  Epil. 

tti  <li    un'  (/)     Tayl.    Evid.    ,',     |'\  ?tli    EcL,  and 

uon                qua  i  impos  ibile  il  repre-  l               there  cited 

furono  di  {tn)  "  Prima  qu idem  ilia  partitio 

D    -                    i  violente,  e  fuori  dell'  Aristotele     t radii  a,                 nm     fere 

■  i  v.-ii  delitti,  omnium  meruit,                  probal  1 

11  ■               .'ii   rationem  aci   perel 

dell  lusa    iimI 

ne  derivano,  &c. :    ma  le  parole  non  ipse,  et  quodamm                           ; 

rimangon     die  nell                             0  que  ills     Oct                             inartin- 

pin  1  p'urf,  id  est  ai tifi- 

Mcoltanti,     Egli  e  adunque  di  gran  ciales vocaverunt :" Quintil. Inst. Orat- 


26  INTRODUCTION. 

evidence  is  commonly  used  in  a  secondary  sense,  viz.  as 
limited  to  cases  where  the  principal  fact,  or  factum 
probandum,  is  attested  directly  by  witnesses,  things  or 
documents.  (;/)  Indirect  evidence,  known  in  forensic 
procedure  by  the  name  of  "  circumstantial  evidence," 
(o)  is  either  conclusive  or  presumptive  ;  conclusive, 
where  the  connection  between  the  principal  and  evi- 
dentiary facts — the  factum  probandum  and  factum 
probans — is  a  necessary  consequence  of  the  laws  of 
nature  ;  presumptive,  where  it  only  rests  on  a  greater 
or  less  degree  of  probability,  (p)  In  practice  this 
latter  is  termed  "  presumptive  evidence  ;  "  obviously  a 
secondary  sense  of  the  word  :  for  direct  evidence  is  in 
truth  only  presumptive,  seeing  that  it  rests  on  a  pre- 
sumption of  the  accuracy  and  veracity  of  witnesses, 
things  or  documents,  (y) 

28.  Again  evidence  is  either  real  or  personal.  (V) 
By  real  evidence  is  meant  evidence  of  which  any  object 
belonging  to  the  class  of  things  is  the  source,  persons 
also  being  included,  in  respect  of  such  properties  as  be- 
long to  them  in  common  with  things,  (s)    This  sort  of 


lib.  5,  c.  1.     See  also  Heinec.  acl  Pand.  sophical  or  historical  truths  are  cstab- 

pars  4,  §  116.  lished  by  remote  inference  or  analogy 

(m)    "  Omnis    nostra    probatio    aut  from     facts,    the    evidence    of    those 

directa  est  aut  obliqua.      Directa,  cum  truths  is  indirect,  but  can  scarcely  be 

id  quod  probare  volumus  ipsis  tabulis  called  circumstantial. 
aut  testimoniis  continetur.      Obliqua,  (/)     "  Dividunter     (signa)    in    has 

cum   id  quod   intendimus   ex    tabulus  primas  duas  species,  quod  eorum  alia 

aut   testimoniis  argumenlando  colligi-  sunt  quae   necessaria  sunt,  quae  Graeci 

tur.  "  Vinnius,  Jurispr.  Contract,  lib.  vocant   TEH/UTJpta  ;    alia   non    neces- 

4,  c.  25.     See  al^o   1  Stark.  Evidence,  saria,  quae  dy/usia.     Priora  ilia  sunt 

15,  3rd  Ed.  ;  and  Id.  21,  4th  Ed.  quae  aliter  habere  se  non  possunt    .     . 

(0)  It  may  be  doubted  whether  these  Alia  sunt  signa  non    necessaria,  quae 

terms  are,  strictly  speaking,   synony-  eixora  Graeci  vocant."    Quintil.  Inst, 

mous.        Circumstantial    evidence    is  Orat.  lib.  5,  c.  9.     Seme  editions  have 

that     species    of    indirect     evidence,  etxaia  instead  of  eIhotcc. 
which  municipal  law  deems  sufficiently  (g)  Supra,  §  7. 

proximate  to  form  the-  basis  of  judicial  (r)   1  Benth.  Jud.  Ev.  53. 

decision.     Where,  for  instance,  philo-  (/)  3  Benth.  Jud.  Ev.  26  ;  and  1  Id. 


EVIDENCE  AND  PROOF  IN  GENERAL.        27 

evidence  may  be  either  immediate,  where  the  thing 
comes  under  the  cognizance  of  our  senses  ;  or  reported, 
where  its  existence  is  related  to  us  by  others.  Personal 
evidence  is  that  which  is  afforded  by  a  human  agent ; 
either  in  the  way  of  discourse,  or  by  voluntary  signs. 
Evidence  supplied  by  observation  of  involuntary 
changes  of  countenance  and  deportment,  comes  under 
the  head  of  real  evidence.  (J) 

29.  The  next  division  of  evidence  deserves  particu- 
lar attention,  both  for  its  own  sake,  and  because  it  will 
be  found  to  run  through  the  whole  system  of  English 
forensic  procedure,  (71)  It  is  this,  that  all  evidence  is 
either  original  or  unoriginal.  By  original  evidence  is 
meant  evidence,  either  ab  intra  or  ab  extra,  which  has 
an  independent  probative  force  of  its  own  ;  unoriginal, 
also  called  derivative,  transmitted  or  secondhand  evi- 
denee,  is  that  which  derives  its  force  from,  through,  or 
under,  some  other.  And  of  this  derivative  evidence 
there  are  five  forms.  1.  When  supposed  oral  evidence 
is  delivered  through  oral;  this  is  hearsay  evidence,  in 
the  strict  and  primary  sense  of  the  term.  2.  When 
supposed  written  evidence  is  delivered  through  written. 
3.  When  supposed  oral  evidence  is  delivered  through 
written.  4.  When  supposed  written  evidence  is 
delivered  through  oral.  5.  When  real  evidence  is 
reported,  either  by  word  of  mouth  or  otherwise.  (:tr) 

30.  The  infirmity  of  derivative  evidence  as  com- 
pared with  its  primary  source  will  be  apparent  on  the 
slightest  reflection.  Take  the  most  obvious  case, — sup- 
posed oral  evidence  delivered  through  oral.    A.  deposes 

53.     This    is    the    "  cvi<l                 I    v  1  the   definition   given    in  i  Ik-nth.  Jud. 

facti  "  of  the    civilian  .      M    '.card,    dc  Ev.  53,54. 

Prok                  8  ;  Calv.   Lexic.  Jurid.  ;  1)  S<  e  bk.  1,  pt  1.  and  bk.  3,  pt.  2. 

1    Hagg.   Cons.   Rep.    105.     See  infra,  ch.  3  and  4. 

bk.  2,  pt.  2.  (x)  Sec  3  Benth.  Jud.  Ev.  396. 
(/)  We  have  slightly  deviated  from 


IXTRODUCTION. 

that  B.  told  him  that  he  witnessed  a  certain  fact.  If  B. 
were  the  deposing  witness  there  would  be  only  two 
chances  of  error  in  believing  his  testimony  :  viz.  that 
he  may  have  been  mistaken  as  to  what  he  thought  he 
witnessed  ;  or,  that  his  narrative  may  be  intentionally 
false.  But  when  his  testimony  comes  to  us  obstetricante 
manu,  (jj/)  through  the  relation  of  A.,  two  fresh  chances 
of  error  are  introduced  :  viz.  that  A.  may  have  either 
mistaken  the  words  uttered  by  B.,  or  may  intend  to 
misrepresent  them.  There  is  indeed  an  additional, 
although  weak,  chance  of  obtaining  the  truth  through 
double  falsehood  or  mistake.  E.  g.,  the  question  is 
was  X.  at  a  certain  time  at  a  certain  place.  A.  was 
there  and  saw  him  ;  but  intending  to  deceive  B.,  tells 
him  he  was  not  B.  believes  this ;  but  with  the  inten- 
tion of  deceiving,  says  to  C,  that  A.  told  him  that  X., 
was  there.  In  relying  on  this  supposed  statement  of 
A.,  vouched  by  B.,  C.  has  got  the  truth,  (z)  It  is  per- 
haps superfluous  to  add  that  the  danger  increases,  the 
greater  the  number  of  media  through  which  evidence 
has  come  ;  for  with  each  additional  witness,  or 
other  medium,  two  fresh  chances  of  error  are  intro- 
duced, (a) 

31.  We  shall  notice  one  other  division,  the  value 
of  which  has  been  too  much  overlooked.  Evidence 
is  either  pre-appointed,  (b)  otherwise  called  pre-consti- 
tuted,  (c)   or  casual,  (V)      Pre-appointed   evidence   is 

(y)  This   expression   is  to  be  found  by  derivative  evidence,  see  the  second 

in  the  Vulgate,  Job,  xxvi.  13  :  "  Spiritus  Part  of  this  Introduction. 

ejus    ornavit    ccelos,    &    obstetricante  (l>)    "  Pre-appointed     evidence."     ) 

manu   ejus    eductus    est    coluber   tor-  Benth.  Jud.  Ev.  256;  I<1.  435. 

tuosus."       See     also     Exod.    i.     16:  (c)  "  Preuves  Preconstituees."  Bon- 

"Quando     obstetricabitis      Ilebrteas,  nier,  Traite  des  Preuves,  "•=;  07  and 

for  " 

379,  2nd  Ed,  ;  and  part  2.  Iiv.  2. 
(*)  See   Lacroix,  Calcul   des  Proba-  ,  "Casual  Evidence."  Bentham'« 

bilites,  §  142.  Rationale  of  Evidence,   &c,  App.  A., 

(a)  For  the  proof  of  historical  facts      ch.  8. 


EVIDENCE  AND  PROOF  IN  GENERAL       29 

defined  by  Bentham,  in  one  place,  (e)  to  be  where  "  the 
creation  or  preservation  of  an  article  of  evidence  has 
been,  either  to  public  or  private  minds,  an  object  of  so- 
licitude, and  thence  a  final  cause  of  arrangement  taken 
in  consequence  (viz.  in  the  view  of  its  serving  to  give 
effect  to  aright,  or  enforce  an  obligation,  on  some  future 
contingent  occasion)  ;  the  evidence  so  created  and  pre- 
served comes  under  the  notion  of  pre-appointed  evi- 
dence." In  another  place  (/)  he  speaks  of  it  as  written 
evidence,  created  with  the  design  of  being  employed- 
on  the  occasion  and  for  the  purpose  of  some  suit,  or 
cause,  not  individually  determined.  Under  this  head 
come  public  documents  :  such  as  records,  registers, &c. : 
together  with  deeds,  wills,  contracts  and  other  instru- 
ments for  the  facilitating  of  proof  on  future  occasions ; 
which  are  drawn  up  by  individuals  either  in  compli- 
ance with  the  positive  requirements  of  law,  or  with  a 
view  to  the  convenience  of  themselves  or  others.  But 
it  is  a  mistake  to  assume  that  this  kind  of  evidence 
must  necessarily  be  in  a  written  form.  (^)  When  a 
party  about  to  do  a  deliberate  act  calls  particular  per- 
sons to  witness,  in  order  that  they  may  be  able  to  beai 
t<  stimony  to  it  on  future  occasions,  their  evidence  is 
pre-appointed  or  pre-constituted,  as  much  as  a  deed 
which  professes  to  be  made  in  witness  of  the  matters 
which  ii  contains.  There  are  several  instances  in  the 
Anglo-Saxon  laws,  where  sales  were  required  to  be 
made  in  the  presence  <>i  particular  classes  of  persons, 
or  in  particular  places,  (//j     A  nuncupative  will  under 

the  29  Car.  2,  c.  3,  s.  19,  was  not  good  unless  the  testa- 
tor "bid  the  persons  present,  or  some  of  them,  beat 
witness  that    such  was  his  will,  &C. ;"  (7)  and  the  2  & 

(e)  2  Benth.  Jud.  Ev.  435.  (/;)  Sei  tho  e  1  ollei  t<  d  in  1  <  rrei  nl. 

(/)  r  Id,  56.  Ev  7th  Ed. 

( g)  See  Bonnier,  Traite  des  Frcuves         (»')  See  now  7  Will.  4  &   1  Vict,  c 

§S  379.  33o,  and  I    1  26.  s.  IX. 


30  INTRODUCTION. 

3  Will.  4,  c.  75,  s.  8,  enacts,  that  any  person  may  "  either 
in  writing  at  any  time  during  his  life,  or  verbally  in 
the  presence  of  two  or  more  witnesses  during  the  ill- 
ness whereof  he  died,  direct  that  his  body  after  death 
be  examined  anatomically,  &c."  (/£)  Any  evidence 
not  coming  under  the  head  of  "  pre-appointed  evi- 
dence"  may  be  denominated  "casual  evidence."  (/) 

(k)   The    direction    given    in    Matt.  thee   one   or    two   more,    that    in    the 

xviii.  15,  16.  seems  a  clear  case  of  un-  mouth    of     two    or     three    witnesses 

written    pre-appointed    evidence:  "If  every  word  may  be  established."     See 

thy  brother  shall  trespass  against  thee,  also  Genesis,  xxiii.  ij,  18. 

go  and  tell  him  his  fault,  Sec.     But  if  (/)  "  Casual   Evidence."    Bentham's 

he  will  not  hear  thee,  then  take  with  Rat.  of  Ev.,  &c,  App.  A.,  ch.  8. 


JUDICIAL     EVIDENCE.  31 


PART  II. 

JUDICIAL    EVIDENCE. 

paragraph 

Judicial  Evidence 32 

Definition 33 

Its  rules  either  exclusionary  or  investitive             34 

Necessity  and  use  of          ..........  35 

A  handmaid  to  jurisprudence 36 

Expletive  and  attributive  justice 36 

Origin  of  municipal  law 37 

The  principles  which   give  birth  to   municipal   law  applicable   to  judicial 

evidence         ............  38 

1.  Necessity  for  limiting  the  discretion   of  tribunals  in  determining 

facts         ...........  3S 

Difference  between  public  and  domestic  jurisdiction            .         .  39 

2.  Necessity  for  the  speedy  action  of  tribunals      .....  41 

Interest  reipublicse  ut  sit  finis  litium 41 

Rules   for  the  disposal  of  matters  of  fact  necessary  to  tribu- 
nals        42 

Rules  regulating  the  burden  of  proof           ....  42 

l.l  GAL    III   SUMPTIONS 42 

I  afferent  kinds  of 43 

Abuse  of  artificial  pn    umpl  i'>ns       .         .         .        .        .46 
Evidence  excluded  on  tin-  grounds  of  vexation,  expense,  and 

delay 47 

3.  In   framing   ruh      "t   judicial    | f  the  coi  aces  of  decisions 

inn  t  be  looked  to           .                 .        .         .         .         .        .        •  4() 

4.  Difl                           the    ■■'  >ii                    J  and  historical  truth     .  50 

ronfounding  legal  with  philosophical  and  histori- 
cal evid<              ..........  3j 

Principal    ecurities  for  the  truth  ol  legal  evidence          ....  54 

i.  Political  or  1<  1  of  truth    .        .        .        .        .        .        -55 

2.  Oath 56 

3.  Establi  hmenl  "f  pn                              pre  appointed  evidence        .  60 

4.  Rejection  of  the  testimony  of  suspected  persons           .        .        •  <>- 

Polh  y  of  th  .         .         .         .        .         .        .        .        .        ,6a 

1                    ntses  of  ii        .        .        .        .        .        .        .        .  63 

5.  Requiring  a  certain  numbi  1  oi  media  of  proof        .        .        .  65 

Advantages  of             .........  65 

Evil                 63 

I        lice  of  the  civilians  and  canonists 66 


32  IXTROnUCTION. 


PARAGRAPH 

Abuses  of  judicial  evidence       . 

(  Q 

Two  particularly  deserving  notice 

i.  Artificial  legal  conviction &" 

Bentham's  scale  ....•••• 

Fallacy  of  it 72 

Application  of  the  calculus  of  probabilities  to  judicial  testi- 
mony      .....■••••     73 
2.  Double  principle  of  decision          .....<         7-1 
Conclusion 

32.  Having  considered  the  subject  of  evidence 
apart  from  jurisprudence  and  judicature,  for  the  sake 
of  distinction  termed  "  natural  "  or  "  moral  evidence," 
we  proceed  to  that  of  "Judicial  Evidence"  which 
is  a  species  of  the  former,  with  the  view  of  showing 
its  essential  difference  and  characteristics. 

23.  "Judicial  evidence"  maybe  denned,  the  evi- 
dence received  by  courts  of  justice  in  proof  or  dis- 
proof of  facts,  the  existence  of  which  comes  in 
question  before  them.  By  facts  here  must  be  under- 
stood the  res  gestae  of  some  suit,  or  other  matter,  to 
which,  when  ascertained,  the  law  is  to  be  applied  ;  for 
although,  in  logical  accuracy,  the  existence  or  non- 
existence of  a  law  is  a  question  of  fact,  it  is  rarely 
spoken  of  as  such,  either  by  jurists  or  practitioners. 
(a)  *     By  "  law "  here,  we  mean  the  general  law   of 

(a)  Voet.  ad  Pand.  lib.  22,  tit.  3,  n.  Preuves,  §§  2  and  23,  2nd   Ed.     See 

8  ;  Huberus,   Frael.  Jur.  Civ.  lib.  22,  also  Co.  Litt.  283  a ;  1  Stark  Ev.   9. 

tit.   3,  n.  7  ;  Vinnius,  Jurispr.  Contr.  3rd  Ed.,  and  12,  4th  Ed 
lib.   4,  cap.   25  ;  Bonnier,  Traite  des 

1  Fact  is  anything  which  is  the  subject  of  testimony.  "  The 
facts  which  the  Code  (of  N.  Y.)  requires  to  be  set  forth,"  said 
Duer,  J.  (in  Lawrence  v.  Wright,  2  Duer  673)  "arc  not  true 
propositions  but  physical  facts,  capable  as  such  of  being 
established  by  evidence  .  .  .  and  from  which,  when  so 
established — the  right  to  maintain  the  action,  or  the  validi- 
ty of  a  defense  is  a  necessary  conclusion  of  law — a  conclusion 
which  the  court  will  draw,  and  which  it  is  quite   unnecessary 


JUDICIAL    EVIDENCE.  33 

each  country,  which  its  tribunals  are  bound  to  know 
without  proof;  for  they  are  not  bound,  at  least  in 
general,  to  take  judicial  cognizance  of  local  customs, 
(U)  or  the  laws  of  foreign  nations  (Y) — the  existence 
of  both  must  be  proved  as  facts.  (d)~ 

(b)  Heinec.  ad  Tand.  pars  4,  §  119  ;      seq.,  5th  Ed.  ;  Ph.  and   Am.  Ev,  624  , 
Id.;  pars   1.  §    103  ,  Co.    Litt.    115   b,      Tayl,  Ev.  §  5,  5th  Ed. 

175  b;  Tayl.  Ev.  §  3,  5th  Ed.  (d)  See    Clegg    v.    Levy.    5    Camr 

(c)  Story,    Confl.    Laws,    §    637,    et       166;  Miller  v.  Heinrich,  4  Id.  154. 

that  the  pleader  should  state." — See  Mann  v.  Morcwood,  5 
Sandf.  (X.  V.)  566. 

The  difference  between  questions  of  law  and  questions  oi 
fact  is  not  easy  to  indicate.  Thus,  the  intent  with  which  a  per- 
son did  an  act  is,  under  certain  circumstances,  a  question  of 
fact,  and  under  others,  a  question  of  legal  inference;  see  Moss 
v.  Riddle,  5  Cranch,  351;  Ballard  v.  Lockwood,  1  Daly,  164, 
Cleft  v.  White,  12  X.  Y.  538;  Miller  v.  People,  5  Barb.  203. 
1  .  il'i'in  v.  Cranston,  1  Bosw.  (X.  Y.)  2S1  ;  Seymour  v.  Wilson, 
14  X.  V.  567;  Griffin  v.  Marquardt,  21  X.  Y.  121;  Thurston 
v.  Cornell,  38  X.  Y.  2S7  ;   Parker  Mills  v.  Jacot,  161. 

Matter  of  opinion  and  matter  of  fact  are  often  con- 
founded. Haight  v.  Ilayt,  19  X.  Y.  464.  Matter  of  pure 
opinion,  when  before  a  court,  becomes  matter  of  law;  set 
Jenning  v.  Carter,  2  Wend.  (X.  Y.)  446  ;  Lockwood  v. 
Thorn,  11.  X.  V.  170;  Farmers'  Hank  v.  Vail,  21  X.  Y.  487, 
Gage  v.  Parker,  25  Barb.  141;  Cayuga  Co.  Bank  v.  Warden, 
6  X.  Y.  20;  Dale  v.  Gold,  2  Barb.  X.  Y.  490;  Buckley  v. 
Keteltas,  1  Hilt,  45.  In  Cowell  v.  Hill,  6  (N.  Y.)  381,  it  was 
held  that  whether  one  had  "  wrongfully  converted "  property 
was  a  question  of  fact.  Decker  v.  Matthews,  13  Id.  354;  bul 
see  Ensign  v.  Sherman,  13  I  low  Pr.  X.  S.  37;  Fletcher  v 
'  Ithorp,  1  New  Mag.  ("as.  511.  And  so  reasonable  dilige 
(Clark  v.  Owen  ,  [8  N.  Y.  435),  ordinary  care  (Ayman  v.  Astor, 
6  Cow.  267)  ihai  a  vessel  w.i  nol  engaged  in  any  illicit  trad< 
(Ocean  In  Co.  v.  Francis,  a  Wend.  72),  have  been  held  to  be 
fin--  t  ion  i  •  'i  fai  1 

3  In  the  absence  of  all  evidence,  the  laws  ol  a  foreign  coun- 
ry  are  presumed  to  be  tin-  '-a  me  as  here, bul  where  a  differ*  1 

alleged,  the  law  must  he  proved  as  a  la<  t.      Kilgore  V,  Buck- 
,   14    Conn.  362;    and    sir    Isabella    v.   PeCOt,  2   La       \n 

nney  v.  Hosea,  3  liar.  77;  F  lite  v.  Lenhart,  7  Mil   .  22;   Leak 

Elliot,  4    Id.  446;    Comparet  v.   Jernegan,  5    Blackf.   375; 
3 


34  INTRODUCTION. 

34.  Judicial  evidence,  as  already  observed,  is  a 
species  of  the  genus  "evidence";  and  is  for  the  most 
part  nothing  more  than  natural  evidence,  restrained  or 
modified  by  rules  of  positive  law.  (e)  Some  of  these 
rules  are  of  an  exclusionary  nature,  and  reject  as  legal 
evidence,  facts  in  themselves  entitled  to  considera- 
tion. Others  again  are  what  may  be  called  investi- 
tive, i.e.t  investing  natural  evidence  with  an  artificial 
weisfht  ;  and  even,  in  some  instances,  attributing  the 
property  of  evidence  to  that  which,  abstractly  speak- 
ing, has  no  probative  force  at  all. 

(e)  "  Probatio    est  actus  jtidicialis,  probatio,  ut  per  testes,  per  instrumen- 

quo  de  facto  dubio   fides  fit   judici."  ta,  per  evidentiam  facti,   per  justam 

Heinec.    nd    Pand.    pars    4,   %    115.  praesumptionem,  per   conjecturam,  et 

"  Probatio  est  intentionis  nostra  legit-  per  multos  alios  modos,  Sec.     Ea  enim 

ima  fides,  quam  judici  facit  aut  actor,  ratione  dixi   legitimos,  ut  ostenderem 

aut  reus."     Matth.  de  Prob.  c.  1,  n.  1;  hujusmodi  probationes  juxta  legis  nor; 

See  also  Voet.  ad  Pand.  lib.  22,  tit.  3,  man  debere  fieri  in  hujusmodi  proba- 

n.  1.    "  Probatio  est  ostensio  rei  dubise  tionibus   observatum,  hoc   est  secun- 

per   legitimos   modos  judici   facienda,  dum  formam  libelli,  secundum  quam 

iii  causis  apud  ipsum  judicem  contro-  pronuntiandum  est  ex  allegatis  :  "  Mas- 

vcrsis,  &c.     Nee  in  definitione  omisi  ca'rdus   de  Prob.   Quccst.    2,  n.  i~,  21 

'  per  legitimos  modos,'  hac  de  causa,  22,  23. 
quia  multi   sunt  modi,   ex  quibus   fit 

Union  Bank  v.  Freeman,  3  Rob.  (La.)  485  ;  Bright  v.  White,  8 
Miss  42 r;  Goodwin  v.  Appleton,  9  Shep.  (Me.)  453;  Baughan 
v.  Graham,  1  How.  (Miss.)  220;  Wakeman  v.  Marquand,  5  Mar- 
tins New  Series  270;  Smoot  v.  Russel,  1  Id.  522;  Smoot  v. 
Baldwin,  Id.  529;  Campbell  v.  Miller,  3  Id.  149;  Taylor  v. 
Bank  of  Alexandria,  5  Leigh  471;  Hanrick  v.  Andrews,  9 
Port.  576;  Owen  v.  Boyle,  3  Shep.  147;  Young  v.  Bank  of 
Alexandria,  4  Cranch,  388 ;  Bailey  v.  McDowell,  2  liar.  34; 
Lord  v.  Staples,  3  Fost,  448;  State  v.  Twitty,  2  Hawks,  441; 
Hosford  v.  Nichols,  1  Paige,  226;  Coit  v.  Williken,  1  Den. 
376;  Strothcr  v.  Lucas,  6  Pet.  273;  Ocean  Ins.  Co.  v.  Francis, 
2  Wend  64;  Henthom  v.  Doe,  1  Black!'.  157;  Allen  v.  Dun- 
ham, 1  Iowa  (Green)  89 ;  Hueston  v.  Jones,  2  La.  An.  937  ; 
Lucas  v.  Peters,  6  Pet.  673  ;  Wilson  v.  Smith,  5  Yerg.  379; 
Taylor  v.  Swett,  3  La.  An.  36;  U.  S.  v.  Johnson,  4  Dall.  415  ; 
1  Id.  9;  Packard  v.  Hill,  2  Wend.  411,3  Id.  173;  Lincoln  v. 
Battelle,  6  Id.  475. 


JUDICIAL     EVIDENCE.  35 

35.  And  here  the  question  presents  itself,  whence 
the  necessity,  whence  the  utility  of  such  rules  ? 
Doubtful  and  disputed  facts,  it  may  be  said,  forming 
the  subject-matter  about  which  natural  and  judicial 
evidence  are  alike  conversant,  and  truth  being  ever 
one  and  the  same,  must  not  any  rules  shackling  the 
minds  of  tribunals  in  its  investigation  be  a  useless,  if 
not  mischievous,  adjunct  to  laws  ?  On  examination, 
however,  it  will  appear  that  a  system  of  judicial  proof 
is  not  only  highly  salutary  and  useful,  but  that  an 
absolute  necessity  for  it  arises  out  of  the  very  nature 
of  municipal  law,  and  the  functions  of  tribunals,  and 
that  some  such  system  is  to  be  found  among  the  legal 
institutions  of  every  country, — we  think  we  may  say 
without  a  single  exception. 

36.  The  evidence  adduced  in  courts  of  justice, 
being  as  it  wire  a  handmaid  to  jurisprudence,  might 
reasonably  be  expected  to  partake  of  the  nature  and 
follow  the  law  of  the  science  to  which  it  is  ancillary. 
And  this  impression  is  confirmed,  not  removed,  by  a 
closer  examination  of  the  subject ;  for  it  will  be  found 
thai  the  same  reasons  which  give  birth  to  municipal 
law  itself,  show  the  necessity  lor  some  authoritative 
regulation  of  the  proofs  resorted  to  in  its  administra- 
tion. Bui  in  order  to  sel  this  in  a  clear  light,  we  must 
point  attention  to  a  distinction  often  overlook*  d,  and 
the  losing  sight  of  which  has  been  1  lie  source  of  much 
mistake  and  confusioa  According  to  wri  on 
natural  law,  jui  tice  is  divided  into  expletive  and 
huiiv  .1/  )  Bythe  former  sometimes  also  denomin 
ated  rigorous  jui  tice,  perfei  1  jui  tice,  or  justice  prop  ily 
so   called     is   meanl    thai   whereb}    we   discharge   to 

{f)   l:  irlai  inqui,  Prii  Droit      lib.    tf  cap     e    .'    viii.     "  1 

ck-  la  N  I  lens,  pi  il    1  -  tpletri* tudinern 

,  De    fur.   Bell,  ac  Pac.      n   picit  attributrix : "  Grot,  in  loc. 


36  INTRODUCTION. 

another,  duties  to  which  he  is  entitled  by  virtue  of  a 
perfect  and  rigorous  obligation,  and  the  performance 

of  which,  if  withheld,  he  has  a  right  to  exact  by  force. 
The  latter  consists  in  the  discharge  of  duties  arising 
out  of  an  imperfect  or  non-rigorous  obligation,  the 
performance  of  which  can  not  be  so  exacted,  but  is 
left  to  each  person's  honor  and  conscience.  These  are 
comprehended  under  the  appellations  of  humanity, 
charity,  benevolence,  &c.  (^)  Under  a  system  of 
municipal  jurisprudence,  expletive  justice  must  be 
understood  to  mean  that  which  may  be  claimed  of 
strict  legal  right ;  and  attributive  justice  that  which 
tribunals  can  either  not  notice  at  all,  or  only  in  virtue 
of  an  equitable  jurisdiction  modifying  and  restraining 
the  rigor  of  the  law.1 

{g)  An  excellent  example  of  the  the  disputed  coat  belong — in  other 
difference  between  these  two  kinds  of  words,  Cyrus  had  proceeded  to  admin- 
justice  is  afforded  by  the  well  known  ister  attributive  justice,  when  his  juris- 
anecdote  of  Cyrus,  recorded  by  Xeno-  diction  only  extended  to  expletive. 
phon  Cyrop.  lib.  I,  c.  3,  and  quoted  The  passages  in  the  Mosaic  law,  "  Ye 
by  Grotius,  in  loc.  cit.  A  big  boy  shall  do  no  unrighteousness  in  judg- 
he/'iiu'  a  coat  that  was  two  small  for  ment  :  thou  slialt  not  respect  the  per- 
hixp,  and  a  little  boy  one  that  was  too  son  of  the  poor,  nor  honor  the  person 
Large  for  him,  the  big  boy  by  force  of  the  mighty  ;  but  in  righteousness 
and  against  the  will  of  the  little  one  shalt  thou  judge  thy  neighbor."  Lev. 
effected  an  exchange  of  coats  ;  and  xix.  15,  and  also  Exod.  xxiii.  3,  are 
Cyrus  being  appealed  to,  adjudged  likewise  cited  in  illustration  of  this 
that  he  was  right.  But  the  master  principle,  which  is  amply  supported 
said  this  decision  was  wrong — for  the  by  other  passages  of  Scripture.  See 
question  was  not  which  coat  was  best  Deut.  i.  17,  xvi.  19.  Prov.  xviii.  5, 
suited   to  each   boy,  but    to  which  did  xxiv.  23,  xxviii.  21.     John  vii.  24. 

Different  nations  have  different  ideas  of  justice. — When 
the  British  Government  sent  an  agent  to  the  King  of  J  )ahomey, 
in  1 85 2,  instructed  to  bring  about  a  discontinuance  of  that 
sovereign's  trade  in  slaves,  the  latter  answered  in  a  letter 
which  for  naivete  is  perhaps  unsurpassed  : 

"The  King  of  Dahomey  presents  his  compliments  to  the 
Queen  of  England.  The  presents  which  she  has  sent  him  are 
very  acceptable,  and  are  good  to  his  face.  When  Governor 
Winiett  visited  the  king,  the  king  told  him  that  he  must  con 


JUDICIAL   EVIDENCE.  3; 

37.  So  soon  as  societies  were  formed  and  the 
relations  of  sovereignty  and  subjection  established,  the 
imperfections  of  our  nature  indicated  the  necessity  for 
municipal  law.  To  administer  perfect  attributive  justice, 
in  all  questions  to  which  the  innumerable  combina- 
tions of  human  action  give  rise,  is  the  high  prerogative 
<  f  Omniscience  and  Impeccability.  For  to  this  end 
are  required,  n  t  only  an  unclouded  view  of  the  facts 

they  have  occurred,  and  a  decision,  alike  unerring 
and  uncorrupted,  on  the  claims  of  the  contending 
parties;  but  a  complete  foresight  of  all  the  conse- 
quences,  both  direct  and  collateral,  down  to  their 
remotest  ramifications,  which  will  follow  from  that 
dri  i  ;ion  The  hopelessness  of  ever  accomplishing 
this,  became  early  visible  to  the  reflecting  portion  of 
mankind;1  and,  the  observation  of  nature  (Ji)  having 
tau  Jit  them,  that  great  ends  are  best  attained  by  the 

(//)    "  Le    ley   imitate    nature."    Per      f.icit  salturn,  ita   nee    Lex.     Co.    Litt. 
dridge,  J.,in  Sheffeild  v.  Katcliffe,      238  b.     See  also  Co.  Litt.  79  a.   Jenk. 
2    kol.    R.    502.      Sieui    Natura    non      Cent.  1,  Case  30;  Hob.  144. 

suit  his  people  before  he  could  give  ;i  final  answer  about  the 
ive-trade.  lie  can  not  see  that  he  and  his  people  can  do 
without  it.  It  is  from  the  slave-trade  thai  he  derives  his  prin- 
cipal revenue.  This  he  has  explained  in  a  long  palaver  to 
M  r.  Cruikshank.  1 le  begs  1  In-  Queen  of  England  to  put  a  stop 
to  tin:  slave-trade  everywhere  else,  and  to  allow  him  to  con- 
tinue it.  .  .  .     The  king  beg  ■  the  queen  t<>  make  :i  law  thai  no 

ships    !><•   allowed    to    trade    al    any  place    near    his   dominions 

lower  down  tie-  coasl  than  Wydah,  as,  by  means  oi  trading 
\t-  jel ,,  1  in-  people  ;u <■  getting  ri<  h  and  1  e  si  ting  his  authority. 
He  hopes  the  queen  will  send  him  some  good  tower-guns, and 

hi  mule  1  |,ii     .     ,  and  plenty  ol   I  hem,  to  enable  him  to  make  war 

(thai   is,  razzias,  in  ordei  to  carr)  oil  captive9  for  the  barracu 

lave-market). 

'So  as  the  world  advances,  and  the  means  and  channel 
..I  information  become  more  a.  ble,  modification  of  old 
rules  become  nece  try.  The  absurdity  of  challenging  a  juror, 
for  instance,  whenevei  he  had  formed  " an  opinion  "  as  to  the 
guilt  or  innocence  of  the  pei  ion  to  I"-  tried  before  him,  in  greal 
«vhere  every  person  must  have  done  so  who  could 


3  8  IN  TROD  UCTION. 

stead)  operation  of  fixed  general  laws,  they  conceived 
the  notion  of  framing  general  rules  for  the  government 
of  society — rules  based  on  the  principle  of  securing 
the  largest  amount  of  truth  and  happiness  in  the 
largest  number  of  cases,  however  their  undeviating 
action  may  violate  attributive  justice,  or  work  injury 
in  particular  instances,  (z')  The  rules  established  by 
authority  for  this  purpose  in  each  country  constitute 
its  municipal  law. 

(i)  The  finest  description  of  munici-  filv    xal    dcjpov     Sfwc,    doy/ux 

pal  law  to  be  found  in  any  language,  is  <5>    aVS paoitoov    qjpoviuoav,   Ina- 

thatof  Demosthenes,  in  his  first  Oration  vopSos/ua    Se    rcSv   kxsdioov    xal 

against  Aristogiton  :  quoted  in  Chris-  dxu6ioov   d/uapTTj/xaroDV,  nuXnaoS 

tian's  edition  of   Blackstone's  Comm.  Ss  6vv3?'pn;  hoivtj,  xaSJ  r)v  itd6i 

vol.  i.  p.  44.  note:  t<0i  Se  V0/.101  to  itpo6^xsi  £,rjv  roXZ  iv  ry  TtoXfi." 

Sixaciov  xal'ro  xaXov  xal  to  du/i-  The  following,  taken  from  the  works 

<pepov   fiovXovrai,  xal    r«ro  'Qij-  of  Isidore,  Bishop  of  Seville,  Etymol. 

T86f  xai  E7C£idctv  fvfjF.Brf,  xoivov  lib.  ii.  c.    10,  is  also  worthy  of  notice  : 

thto  itpodTttypa.  dnsSEix^t],  ita-  — "  Erit  autem  lex,  honesta,  justa,  pos- 

div    idov    HOci    0JU010V     xal     thv'1  sibilis,  secundum  naturam,  secumdum 

idri    vojuo?,  00   Ttavrai  Ttpod?}xEi  consuetudinem  patriae,  loco  temporique 

neiSsdSai   did   noXXd,    xal  fid-  conveniens,    necessaria,   utilis,   mani- 

X16S' ,  on  ndi  e6ti  vo/J-Oi  Evpy/ia  festa   quoque   nc   aliquid   per  obscuri- 

read  the  newspapers,  or  who  had  ears  to  hear  his  neighbor's 
conversation,  has  long  been  apparent.  In  1873,  the  legislature 
of  the  State  of  New  York  enacted  that  "the  previous  forma- 
tion or  expression  of  an  opinion  or  impression  in  reference  to 
the  circumstances  upon  which  any  criminal  action  at  law  is 
based,  or  in  reference  to  the  guilt  or  innocence  of  the  prison- 
ers, or  a  present  opinion  or  impression  in  reference  thereto, 
shall  not  be  a  sufficient  ground  of  challenge  for  principal 
?ause  to  any  person  who  is  otherwise  legally  qualified  to  serve 
as  a  juror  upon  the  trial  of  such  action  :  provided  the  person 
proposed  as  a  juror,  who  may  have  formed  or  expressed,  or 
has  such  opinion  or  impression  as  aforesaid,  shall  declare  on 
oath  that  he  verily  believes  that  he  can  render  an  impartial 
verdict  according  to  the  evidence  submitted  to  the  jury  on 
such  trial,  and  that  such  previously-formed  opinion  or  impres- 
sion will  not  bias  or  influence  his  verdict,  and  provided  the 
court  shall  be  satisfied  that  the  person  so  proposed  ;is  a  juror 
does  not  entertain  such  a  present  opinion  as  wotdd  influence 
his  verdict  as  a  juror." — Laws  of  N.  Y.,  Ch.  475,  p.  n  33. 


JUDICIA  L    E  VIDENCE. 


39 


38.  The  leasons  for  applying  these  principles  of 
legislation,  to  evidence  received  in  courts  of  justice, 
although  less  obvious,  are  equally  satisfactory  with 
those  which  originated  the  principles  themselves.  In 
the  first  place  then  we  would  observe,  that  the  relations 
of  cause  and  effect  are  manifestly  innumerable ; 
especially  when  those  cases  are  taken  into  the  ac- 
count, where  the  effect  does  not  follow  immediately 
from   its  ultimate  cause,  and  is  onlv  the  mediate  con- 


tatem  in  captionem  con  tin  eat,  nullo 
privato  commotio,  sed  pro  communi 
civium  militate  conscripta."     See  also 

lib.  I,  t.  3,  11,  3  and  10;  lib.  50, 
t.    17.   1.  64.       Our   common-law   au- 

ties  arc  strong  to  the  same  effect. 
— "  Ad  ea  quae  frequentius  accidunt 
jura  adaptantur."  Co.  Liu.  23S  a.  2 
137.  5  I  '<>.  127  b.  6  Co.  77  a. 
— "  Le  1  .able  que  provide 

pur  le  multitude,  comet  que  ascun 
1  ial  person  ont  perd'  p  c.  Vix 
ulla  lex  fieri  potest  quae  omnibus  com- 
moda  sit,  sed  si  majori  parti  pspiciat, 
utilis  est."  Plowd.  369.  "There 
hardly     exists,"    says     Lord      Ellen- 


be  brought  against  him  upon  the  likj 
matter."  Whereupon  Thirning,  C.  J., 
interposed— "  What  is  that  to  us?  It 
is  better  that  he  should  be  quite  un- 
done than  that  the  law  should  be 
changed  for  him."  And,  lastly,  we 
would  refer  to  the  ea-e  of  the-  Prohibi- 
tions del  Roy  in  12  Co.  63,  M.  5  Jac. 
I.  The  archbishop  had  informed  the 
king  that  he  had  a  personal  jurisdic- 
tion in  ecclesiastical  matters,  which 
Sir  Edward  Coke,  answering  for  him- 
self and  the  lest  of  the  judges,  denied  ; 
saying,  that  the  king  in  his  own  per- 
son can  not  adjudge  any  case,  but  that 
it  ought  to  be  determined  and  adjudged 


borough,  in    R.  v.  The   Inhabitants  of      in  some  court  of  justice,  according  to 


Harringworlh,  4    M.   &   Sel.   350,   a 

ral    rule,   out   of  which    does    not 

grow,  or  in.-; .  ome 

p  onvenience   from   a  strict 

.  the 

of    having    certain     1 

,  which    is   far  abo\  other 


the  law  and  custom  of  England,  &c, 
&c.  "Then,"  continues  the  report,  p. 
64,  "  the  king  said,  thai  he  thought 
the  law  was  founded  on,  and 

that    he  Mild   Othd  3  had     it  a    OH   as  well 

answered 
by  me,  that  true  it  was,  thai  « Jod  had 


if      endowed     hi,    majesty    with    excellent 


jush  them,  with 

ticular  in< 
whii  h  iic  -unity  ma)  I  as  liki  ly 

leir  application." 
In  P.  2  II.  IV.  1-  1:.  pi,  6((  ited  in  the 

1  •  .  1 : 
the  counsel  for  a  defendant  in  th< 
P  "  This 


and  great  endowments  ol 
nature  ;  but  his  majesty  was  1  ol 
leai  ued  in  the  law  1  of  his  n  aim  ol 
I       land,  and  rhich  <  oncern  the 

life,  or  inhei  itani  e,  01  g Is,  or  fori  u     1 

of  hi 1  subjei  '  dei  ided 

by  natural  reason,  bul  bythe  artificial 

11  nl  of  law,  which  law 


undone  and  im;  er,   if     i>  an  artwhicl  tudyand 

this  acti  tintained  again  t  him,      1  anattaii 

for  then  twenty  other  such  suits  will      to  the  cognizance  of  it,  8 


4o  INTRODUCTION. 

sequence  of  some  subalternate  one.  Now  "Optima 
est  le\,  quae  minimum  relinquit  arbitrio  judicis  :  "'  (/) 
but  the  power  of  a  tribunal,  however  nicely  defined 
by  rules  of  substantive  law,  would  soon  be  found 
absolute  in  reality,  if  no  restraint  were  imposed  on  its 
discretion  in  declaring  facts  proved  or  disproved  ;  and 
we  accordingly  find,  that  the  laws  of  every  well- 
governed  state  have  established  rules  regulating  the 
quality,  and  occasionally  the  quantity,  of  the  evidence 
necessary  to  form  the  basis  of  judicial  decision.  And 
here  the  analogy  to  the  other  branches  of  municipal 
law  seems  complete.  The  exclusion  of  evidence  by 
virtue  of  a  general  rule  may,  in  particular  instances, 
exclude  the  truth,  and  so  work  injustice ;  but  the  mis- 
chief is  immeasurably  compensated,  by  the  stability 
which  the  general  operation  of  the  rule  confers  on  the 
rights  of  men,  and  the  feeling  of  security  generated  in 
their  minds  by  the  conviction,  that  they  can  be 
divested  of  them  only  by  the  authority  of  the  law, 
and  not  at  the  pleasure  of  a  tribunal.  The  two  prin- 
cipal checks  which  the  law  of  England  imposes  on  its 
tribunals  in  this  respect  are,  first,  the  prohibiting  judges 
and  jurymen  from  deciding  facts  on  their  own  personal 
knowledge,  and  placing  them  as  it  were  in  a  state  of 
legal  ignorance,  as  to  almost  everything  relating  to 
the  matters  in  question,  except  what  is  established  be- 
fore them  by  evidence.  (JS)     Its  maxim  is,"  Non  refert 

(J)  Bac.  de  Augm.  Scient.  lib.  8,  c.  See  Decret.   Greg.  IX.  lib.  5,  tit.  T,  1. 

3,  tit.  1,  Aphorism.  46.  9  ;    Calvin,    Lex   Jurid.    voc.  "  Noto- 

(k)  7   II    IV,  41,  pi.   5;  Plowd.  83  ;  rium  ;  "   Gibert,   Corpus   Jur,    Canon, 

I    Leon.    161.     Sec   the  authorities  in  Proleg.  Pars  Post.  tit.  7,  cap.  2,  j5  2,  N, 

the   following  notes,  and   infra,  bk.  I,  ix.,  and  Devotus,  Inst.   Jur.  Can.  lib 

pt.  I.     The    canonists    seem    to   have  3,  tit.  14,  §  10,  not.  I. 
been  somewhat  loose  in   this  respect. 

1  That  system  of  law  is  best  which  confides  as  little  as  pos 
&ible  to  the  discretion  ot  the  judge. — Broom.  Leg.  Max.  84. 


JUDICIAL  EVIDENCE.  41 

quid  notum  sit  judici,  si  notum  non  sit  in  forma 
judicii:"(7)  and  the  principles,  "  De  non  apparenti- 
bus  et  non  existentibus  eadem  est  ratio,"  (m)  "  Idem 
est  non  esse  et  non  apparere,"  («)  "  Quod  non  apparet 
non  est,"  (0)  "  Incerta  pro  nullis  habentur,"  (/)  &c,  so 
false  in  philosophy,  become  perfectly  true  in  our  juris- 
prudence. The  second  is,  the  exacting  as  a  condition 
precedent  even  to  the  reception  of  evidence,  that 
there  be  an  open  and  visible  connection  between  the 
principal  and  evidentiary  facts,  —  "  Nemo  tenetur 
divinare  "  (jf) — "  Probationer  debent  esse  evidcntes, 
(id  est)  perspicuae  et  faciles  intelligi."  (r)  This  indeed 
is  only  following  out  a  great  principle  which  runs 
through  our  whole  law — "In  jure  non  remota  causa, 
sed  proxima  speetatur."  (s)  One  or  two  instances 
will  illustrate.  If  things  are  traced  up  to  their  ulti- 
mate sources,  the  remote  though  chief  cause  of  the 
appearance  of  a  criminal  at  the  bar  might  be  found  in 
his  parents,  his  education,  the  example  of  others,  the 
law  itself,  or  even  the  very  judge  by  whom  he  is  tried  ; 
still  the  tribuna]  can  not  enter  upon  such  matters,  and 
must  only  look  at  the  proximate  cause — his  own  act. 
So,  the  non-payment  of  a  debt  has  lor  its  proximate 
cause  the  debtor's  neglect,  but  the  ultimate  cause  may 
be  the  default  of  others  whose  duty,  either  legally  or 
morally,  ii  was  to  have  supplied  him  with  money. 

(/)  3   Bulst.  115.    "  Nou  i  n<  i    ■  1 :       179. 

.  pas  alei  a  jugement  sur  no  (/)    Davys,    33;     Lofft,    M.    555; 

chose,  eins    elonque  ce  que  le  proces  I              Max.  xxvii.  3rd  Ed. 

est  devant  nous  mesrrn     '      PerHerle,  [q)  4  Co.  28  a,  and  66  b  ;  10  Co.  55 

C.  J.,  II.  7  Edw.  III.  4  A.  pi,  7.  a.     See    also    Bac.    Max.   sub  reg.  3; 

(m)  4  Co.  47  a ;  5  Co.  v.  b. ;  12  Id.  I               i;  Lofft,  M.  559. 

53,   i  ;  l  ;  3    Bulst.    tio  ;   I  !<>!>.   295;  1  (r)  ('<>.  Litt.  283  a. 

T.  R.404;  7  M.&W.  137 ;  toBingh.  <   l  Bac.   Max.  >>f  the  Law,  Reg  1 

47  ;  ()  Bingh.(N.C)  539;  7  M.  &  W.  1 2  East,  652  ;  14  M.  &  W.  483  ;  1 

437.  B.  379:  [8  Jurist,  962 ;  6  B.  &  S,  881 

(n)  Jcnk.  Cent.  5,  Cas.  36.  II.  <S:  K.  61.     See  infra,  bk.  I,  pt.  1. 


42  INTRODUCTION. 

39.  And  here  must  be  noticed  a  false  principle 
which  is  to  be  found  in  some  systems  of  jurisprudence, 
and  which  runs  through  Bentham's  work  on  judicial 
1  vidence — viz.,  the  assumption  that  there  is  a  perfect, 
or  even  close,  analogy  between  justice  administered 
by  a  parent  in  his  family,  and  justice  administered  by 
municipal  tribunals  between  man  and  man.  "  Before 
states  existed,"  (J)  says  the  eminent  writer  just 
quoted,  "  at  least  in  any  of  the  forms  now  in  exist- 
ence in  civilized  nations,  families  existed.  Justice  is 
not  less  necessary  to  the  existence  of  families  than  of 
states.  The  mode  in  which,  in  those  domestic  tribu- 
nals, created  by  nature  at  the  instance  of  necessity, 
justice  was  administered,  and,  for  that  purpose,  facts 
were  inquired  into,  may,  for  distinction's  sake,  be 
termed  the  natural  or  domestic  mode  of  judicature. 
It  is  among  the  characteristics  of  the  natural  or 
domestic  mode  of  judicature,  to  be  exercised  (if 
not  absolutely,  at  least  comparatively  speaking)  with- 
out forms,  without  rules.  A  man  judges,  as  Monsieur 
Jourdan  talked  prose,  unconscious  of  any  science  dis- 
played, of  any  art  exercised.  One  of  your  two  rons 
leaves  his  task  undone,  and  tears  his  brother's  clothes: 
both  brothers  claim  the  same  plaything:  two  of  your 
servants  dispute  to  whose  place  it  belongs  to  do  a 
given  piece  of  work.  You  animadvert  upon  these 
delinquencies,  you  settle  these  disputes:  it  scaicc 
occurs  to  you  that  the  study  in  which  you  have  been 
sitting  to  hear  this,  is  a  tribunal,  a  court ;  your  elbow 
chair  a  bench ;  yourself  a  judge.  Yet  you  could  no 
more  perform  these  several  operations,  without  per- 
forming the  task  of  judicature,  without  exercising  the 
functions  of  a  judge,  without  hearing  evidence,  with- 
out  making  inquiry,  than    if  the  subject  of  inquiry 

(/)  4  Benth.  Jud.  Ev.  7,  8. 


JUDICIAL  E VIDE Nth.  43 

had  been  the  Hastings  cause,  the  Douglas  cause,  or 
the  Literary  Property  cause."  From  all  this  he  draws 
the  conclusion  that  courts  of  summary  jurisdiction 
are  courts  of  natural  procedure,  (zt)  and  very  superior 
both  in  theory  and  practice  to  the  ordinary  and 
regular  tribunals.  Under  the  former  he  reckons  courts 
of  request,  courts  of  conscience,  courts  martial,  and 
summary  proceedings  before  justices  of  the  peace, 
&c. ;  and  he  not  only  lavishly  praises  them  in  many 
passages  of  his  work  on  Judicial  Evidence,  (x)  but 
in  a  work  published  in  1  790,  when  speaking  of  this 
country,  assures  the  French  nation,  that  "  Imagina- 
tion can  not  conceive,  nor  heart  desire,  greater  integ- 
rity than  has  been  uniformly  displayed  for  ages,  by 
courts  composed  of  single  judges,  without  juries, 
under  the  auspices  of  publicity,  though  in  a  state  of 
dependence  on  the  crown."  (_y) 

40.  Now  we  have  no  wish  to  discuss  the  merits 
of  these  tribunals,  further  than  to  observe  that  court* 
of  request  and  courts  of  conscience  have  been  super 
seded  by  a  jurisdiction  of  a  very  superior  kind,  intro- 
duced by  9  &  10  Vict.  c.  95  ;  and  that  we  really  are 
not  aware  that  courts  martial,  at  least  in  general,  are 
conducted  without  forms.  But  the  fallacy  of  the 
reasoning  on  which  the  praise  of  summary  tribunals 
is  founded,  ari  e  from  losing  sight  of  the  gnat  prin- 
ciple, thai  1!"  e  encc  of  all  rules  of  municipal  law,. 
adjective  as  well  as  substantive,  consists  in  their  gen- 
erality. The  observation  is  as  old  as  the  days  of  Aris- 
totle, thai  a  commonwealth  is  not  to  be  confounded 
with  a  family,  as  though  a   large  family  were  nothing 

(«)  .1  I:,  mli.  Jnd.  Ev,  8-12.  ( y)  l'r.ut  <.f  .1  new  plan  foi  the  I  »i 

(-r)  See  inter  al.,  vol.  ii.  pp.  28,  29:  ganization  of  the  Judicial    l    tablish* 

vol.  iv.  pp.  327,  352,  355,  356,  357,  ment   in   I  ranee,   March,   1790,  ch.  2 

405,  430,  431,  432.  437-439.  443.  628.  tit.  2,  p.  7. 


44  INTRODUCTION. 

different  from  a  small  commonwealth  ;  {£)  and  a 
very  little  reflection  will  show  the  difference  between 
them.  The  parent  in  his  family  administers  a  kind 
of  attributive  justice.  Both  by  natural  and  muni- 
cipal law  he  is  invested  with,  comparatively  speaking, 
an  absolute  power  over  his  children  ;  this  is  indispen- 
sably necessary,  to  guide  the  conduct  and  form  the 
characters  in  whom  reason  and  experience  are  almost 
a  blank  ;  and  the  feeling  of  parental  affection  is  so 
strong  that  this  power  may  in  general  be  safely  in- 
trusted to  him.  But  the  case  is  quite  different  With  a 
sovereign,  or  judge,  governing  for  the  common  wel- 
fare a  set  of  beings  of  matured  intellect  like  himself. 
A  pure,  unlimited  monarchy  is  unquestionably  the 
natural  and  primitive  form  of  government,  but  docs 
it  thence  follow  that  it  is  the  best  at  the  present  day, 
and  that  all  others  ought  to  be  extirpated  ?  On -the 
other  hand,  how  absurd  would  it  be  to  argue,  that  be- 
cause a  constitutional  monarchy  is  an  excellent  form 
of  government  for  a  country,  each  private  individual 
should  establish  one  in  his  family  !  The  very  state- 
ment of  these  propositions  is  their  refutation  ;  and 
yet  it  is  the  same  sort  of  reasoning  which  would  infer 
that  pre-established  forms  are  useless  in  public  judi- 
cial investigations,  because  they  would  be  useless,  or 
worse,  in  foro  domestico. 

4 1.  Again  ;  the  duty  of  a  judicial  tribunal  in  deal 
ing  with  facts,  is  not  limited  to  the  abstract  question 
of  their  existence ;  for,  whether  materials  for  definite 
judgment  or  belief  respecting  it  are  forthcoming  or 
not,  a  decision  must  be  given,  to  be  followed  by 
speedy,  if  not  immediate  action.'     Questions  of  phil- 

(z)  Aristotle's  Politics,  bk.  I,  ch.  1. 

1  Without  evidence  or  with  bad  rules,  the  judge  of  fact  is  as 
powerless  to  do  justice  as  the  Hebrew  of  old  was  to  make 


JUDICIAL   EVIDENCE.  45 

osophy,  whether  natural  or  moral,  as  well  as  questions 
of  history,  rest  for  the  most  part  in  speculation,  and 
may  be  undertaken,  dropped,  and  renewed,  at  pleasure 
or  convenience.  Whether,  for  instance,  the  law  of 
gravitation  extends  beyond  the  solar  system  ;  whethei 
there  is  any  determinate  law  of  relation  between  the 
magnitudes  of  the  planets  and  their  distances  from 
the  sun  ;  whether  the  motion  of  each  of  what  are  in- 
accurately termed  fixed  stars,  is  independent  or  only 
forms  part  of  some  gigantic  system,  are  at  present 
matters  for  investigation  lying  open  to  men  in  gen- 
eral ;  and  the  astronomer,  who  considers  that  the 
materials  before  him  are  insufficient  to  warrant  his 
forming  a  positive  opinion  on  any  of  these  subjects, 
may  suspend  his  judgment,  in  the  hope  that  the  ob- 
servation  of  additional  phenomena,  or  an  improved 
analysis,  or  both  combined,  will  disclose  the  truth  to 
more  fortunate  generations.  So,  whether  the  army 
with  which  Xerxes  invaded  Greece  consisted  oi 
thousands  or  millions  of  men  ;  whether  Caesar  was 
implicated  in  the  Catilinarian  conspiracy;  whethei 
King  Richard  1 1 1,  murdered  his  nephews;  and  a  host 
of  such  like  questions,  are  questions  the  solution  of 
which  may  be  deferred,  or  even  pronounced  impossi- 
ble, without  in  the  least  affecting  the  rights  of  indi- 
viduals, or  the  peace  and  good  order  of  society.  In 
the  general  course  of  c very-day  life,  also,  we  are  rarely 
com] idled  to  act  on  mere  conjectures,  and  commonly 
remain  passive  as  long  as  possible,  in  the  hope  of  pro- 
curing satisfactory  evidence  to  confirm  or  dissipate  them 
But  judicial  inquiries  differ  widely  from  all  these, 
"Interest  (or  '  cxpedit ')  republicse  Ut  sit  finis  lit  ium  ;" 

brick  without   the   needed  straw.— Appletou   on  the   Rules  di 
Evidence,  preface. 


46  INTRODUCTION. 

(a)  "  Nc  litcs  immortalcs  csscnt  dum  litigantes  mor- 
tales  sunt."  (b)  The  plaintiff  and  defendant  stand 
before  the  tribunal,  and  both  individual  and  social 
interests  require  from  it  a  decision,  and  that,  too,  a 
speedy  decision,  one  way  or  the  other.  It  will  not.  do 
for  the  judge  to  say,  "  This  matter  seems  doubtful :    I 

# 

suspend  my  judgment,"  and  dismiss  it,  to  be  renewed 
indefinitely  from  time  to  time  ;  keeping  alive  all  the 
annoyance  and  irritation  of  a  law-suit ;  holding  out 
to  each  of  the  parties,  a  manifest  temptation  to  fabri- 
cate evidence  in  order  to  turn  the  scale  in  his  favor  ; 
and  injuring  the  community,  by  distracting  the  atten- 
tion of  at  least  two  of  its  members  from  the  exercise 
of  more  useful  avocations.  All  this,  however,  is  very 
different  from  adjourning  a  court  for  a  definite  time, 
for  the  purposes  of  justice,  (c) 

42.  The   duty  of  the   legislator,  therefore,  is  not 
discharged  by  framing  substantive  laws  and  establish 
ing  forms  of  judicial  procedure  ;  in  order  to   do  jorrv 
plete  justice  he  must  go  further,  and  supp  »>'  rules   for 
the  guidance  of  tribunals  in  the  disposal  o    <*i*  matters 
of  fact  which  come  before  them,  whatever  tae  nature 
of  the  inquiry, or  however  difficult  or  even  impossible 
it  may  be  to  get  at  the  real  truth.     In  such    strait^ 
barbarism  and  ignorance  either  decide  at  haphazard 
in  each  particular  instance,  or  dogmatically  lay  down 
unbending  rules  to  be   applied  in   all  cases,  or  invoke 
the  aid  of  superstition — sometimes,  as  in  the  trials  bv 
ordeal  which  have  prevailed  both   in  the  ancient  and 
modern   world,  and   in    the  judicial  combats   of  the 
middle    ages,  audaciously   and    impiously  calling    on 
Heaven  to  vindicate  the  injured  party  by  a  miracle  ; 

[a)  4  Blacki-t.  Com.  33S  ;  Co.  Lilt.  (6)  Voet.  ad.  Pand.  lib.  5,  tit.   1    n 

103  a,  303  b  ;  6  Co.  9  a,  and  45   a  ;  II       53  ;   17  C.  1!.  140,  per  Willes,  J. 
Id.  69  a  ;   3  II.  &  X.  647.  (c)  17  &  18  Vict,  c   125,  s.  19. 


JUDICIAL   EVIDENCE. 


47 


and  at  others,  as  in  the  old  system  of  canonical  purga- 
tion and  the  wager  of  law  of  our  ancestors,  unwar- 
rantably assuming  that  the  truth  will  be  extracted,  by 
the  oath  of  the  party  who  is  most  strongly  interested 
in  its  concealment,  (d)  On  the  other  hand,  the  laws 
of  countries  where  the  true  principles  of  jurisprudence 
arc  understood,  meet  the  difficulty  by  establishing 
rules  to  regulate  the  burden  of  proof  ;  or,  most 
usually,  to  speak  with  strict  accuracy,  by  attaching  an 
artificial  weight  to  the  natural  principles  by  which  the 


(d)  A  very  good  account  of  these  is 
given  by  Bonnier,  in  his  Traite  des 
Preu  2nd    hi. 

;    Black  t.  Comm.  ch.  27  :  Devo- 
In-t.   Jur.  Can.  lib.  3.  tit.  9,  £  26, 
not.  (3),  and  £  30,  in  notis,  and  Gib- 
Decline  and  Fall  of  the  Roman 
Empire,  ch.  38.    1  the  absurdity 

and  impiety  of  these  presumptuous 
ils  to  miraculous  interposition, 
there  can  be  little  doubt  that  the  dan- 
ger of  them  v.  1  evaded  by 
management,  so  as  to  b  ap- 
;it  than  real.  The  following  curi- 
ous instance  of  this,  taken  from  an 
anci<                            I     aulln 

n    in    the    Law    Magazine,  X.  S. 
vol.  i.  ]>.  8.     After  a  long  disputi 

nd  hi  A 1  iin, 

on    the    11;'  rits     of    their     re  pei  live 

1        !  i,  the  l  'atholic   says,  "  Quid  l"n- 

itionum  intentionibus  f.ui- 

gamur  f  F  tas  adprobetur. 

-  '-ii  1  i 

aqua   annulu  lam    projii  1 

mi  vero  eum  fenti  unda    u  stu- 

npro- 
l)atur,  quo  fi 

tion  .  ertatur." 

Arian  •        1    horam 

am  in  1  com  urrit 

I  us   ad  dum,   act  enditur 

igni .,  •  1,  rponitur,  fei  vet  valde, 

annulu.  in  unda  ferventi  projicitur." 


The  Catholic  invites  the  Arian  to 
plunge  his  arm  first  into  the  seething 
water  ;  the  latter  declines  the  fust 
trial,  urging  the  Catholic,  as  the  chal- 
lenger, to  begin.  The  Catholic  bares 
his  arm.  but  the  Arian  beholding  it 
smeared  with  oil  exclaims  that  a  fraud 
is  intended,  on  which  Jacinthus,  an- 
other Catholic  deacon,  happening 
accidentally  (of  course)  to  ]  ass  that 
way,  inquires  into  the  cause  of  sti 
The  issue  is  thus  related:  "Nee 
moratus,  extracto  a  vestimentis  brai  hio 
in  penenm  dexteram  mergit.  Annulus 
enim,   qui    ejectus    fuerat,   erat   valde 

ac  parvulus,  nee  minus  ferebatui 
ab  unda   quam   vento   po    il    ferri  vel 
palea.     Quem  diu  multumque  qu 
turn,  infra  unius  horse  spatium  reperit. 

ndebatur      intere  1      \   hementer 
i     io,  quo  validius  fei  - 
vens  non  facile  ad  iequi  possit  annum . 
a  1 1 1 . 1 1 1 1 1  quail  enl  1  ,  extracl  umque  tan- 
dem nihil   iensil  diai  onus  in  carm         . 

potiu     proti    tatur  in  imo  qui 

[urn   1         .'  m  mi,   in    summitatc 

;  em- 

tern.     Q  nei         eretii  us,  valde 

udax    manum    in 

M'      Libit       lllilli 

!  111. inn. 

usque  ad 

ta  defluxit  ;  et   sic  alter- 
catio  fmem  fecit." 


48 


IXTRODUCTIOX. 


burden  of  proof  is  governed.  This  has  been  well 
explained  by  a  foreign  jurist,  in  language  of  which 
the  following  is  a  translation,  (e)  "  The  determining 
to  what  extent,  a  certain  known  element  renders 
probable  the  existence  of  such  or  such  an  unknown  i 
cause,  governed,  as  it  necessarily  is,  by  the  light  of 
reason,  in  general  depends  wholly  on  the  discrimina- 
tion of  the  judge.  But  in  the  most  important  cases 
the  law,  desirous  of  insuring  the  stability  of  certam 
positions,  and  of  cutting  short  certain  controversies, 
has  .established  presumptions,  to  which  the  judge  is 
obliged  to  conform."  And  in  another  place,  (/)  "  It 
is  not  always  possible  for  man  to  arrive  at  a  perfect 
knowledge  of  the  truth  in  each  particular  case,  and 
yet  social  necessities  do  not  always  allow  him  to  sus- 
pend  his  judgment  and  refrain.     The  stability  of  the 


(/)  Bonnier,  Traite  des  Preuves,  § 
710,  2nd  Ed.  We  subjoin  the  original. 
"  La  question  de  savoir  jusqu'a  quel 
point  tel  clement  connu,  rend  vraisem- 
blable  l'existence  de  telle  ou  telle 
cause  inconnue,  subordonnee  par  sa 
nature  aux  lumieres  de  la  raison,  de- 
pend en  general  uniquement  de  l'ap- 
pre'eiation  du  juge.  Mais,  dans  les 
cas  les  plus  importants,  la  loi,  voulant 
assurer  la  stabilite  de  certaines  posi- 
tions, et  coupcr  court  a  certaines  con- 
troverses,  a  etabli  des  presomptions 
auxquelles  le  juge  est  oblige  de  se 
conformer." 

(/)  Id.  g§  733,  734,2nd  Ed.  "  II 
n'est  pas  toujours  possible  a  1'homme 
d'arriver  a  la  connaissance  parfaite  de 
la  verite  dans  cliaque  cas  particulier, 
et  cependant  les  nccessites  sociales  ne 
Iui  permettent  pas  toujours  fie  suspen- 
dre  son  jugement  et  de  s'abstenir.  La 
stabilite  de  l'etat  des  personnes,  c< 
des  proprietes,  enfin  le  besoin  de 
calme  et  de  securite  pour  une  foule 
d'interets  pre'eieux,  obligent  le  le'gisla- 


teur  a  tenir  pour  vrais  un  grand  nom- 
bre  de  points,  qui  ne  sont  pas  demon- 
tres,  mais  dont  l'existence  est  c'tablie 
par  une  induction  plus  OU  nioins  puis- 
sante.  L'ordre  politique,  comme  l'or- 
dre  social,  ne  repose  que  s-ir  des  pre- 
somptions legales.  L'aptitude  a  exer- 
cer  certains  droits,  a  remplir  certaines 
fonctions,  ne  se  reconnait  qu'au  moyen 
de  certaines  conditions  de'terminees  a 
priori,  une  verification  special e  pour 
chaque  individu  etant  e'videmment 
impracticable.  Plus  les  relations  so- 
ciales se  compliquenl,  plus  il  devient 
necessaire  de  multiplier  ces  presomp- 
tions. .  .  .  Les  motifs  qui  ont 
determine  le  legislateur  a  etablir  telle 
ou  telle  pre'somption,  tiennent  le  plus 
sou  vent  an  droit  bicn  plus  qu'au  fait. 
Ce  qu'il  examine  surtout,  ce  n'est  pas 
si  le  fait  connu  reunit  tous  les  carac- 
teres  suffisants  pour  rendre  probable 
le  fait  inconnu,  mais  settlement  si 
l'interet  social  exige  que  Ton  conclue 
de  la  constatation  de  l'un  a  l'existence 
de  l'autre  " 


JUDICIAL  EVIDENCE.  49 

state  of  person  and  property,  in  a  word,  the  want  of 
peace  and  security  lor  a  multitude  of  precious  interests, 
compel  the  legislator  to  hold  as  true  a  great  number 
of  points  which  are  not  demonstrated,  but  whose  exist- 
ence is  established  by  an  induction  more  or  less 
cogent.  Political  order,  like  social  order,  rests  only  on 
legal  presumptions.  The  capacity  of  exercising  certain 
rights,  discharging  certain  functions,  can  be  recognized 
only  through  the  medium  of  certain  conditions  deter- 
mined a  priori,  a  special  verification  for  each  individual 
instance  being  evidently  impracticable.  The  more 
social  relations  become  complicated,  the  more  it 
becomes  necessary  to  multiply  these  presumptions. 
The  motives  which  have  induced  the  legisla- 
tor to  establish  such  or  such  a  presumption,  much 
more  frequently  belong  to  law  than  to  fact.  What  he 
chiefly  considers  is,  not  whether  the  known  fact  com- 
bines all  the  characteristics  requisite  to  render  the 
unknown  fact  probable,  but  solely  whether  social 
interest  requires  that,  from  the  proof  of  the  one,  the 
existence  of  the  other  ought  to  be  inferred."  And  a 
late  eminent  judge  observed  in  one  case,  ( g )"  The 
laws  of  evidence  as  to  what  is  receivable  or  not,  are 
founded  on  a  compound  consideration  of  what,  ab- 
stractly considered,  is  calculated  to  throw  light  on 
the  subject  in  dispute,  and  of  what  is  pract icable. 
Perhaps  if  we  lived  to  the  age  of  ;i  thousand  years, 
instead  of  sixty  or  seventy,  il  mighl  throw  light  on 
any  subject  that  came  into  dispute,  if  all  matters 
which  could  l>v  possibility  affecl  it  wen-  severally  gone 
into;  and  inquiries  carried  on  from  month  to  month 
as  to  the  truth  of  everything  connected  with  it.     1  do 

(/)  Rolfe,    B  .   in    The    Attorney-      Jurist,  478,  482;  S.  C,   1    Exch    ^\ 
General  v.  Hitchcock,  T.         .     t.  11      105. 

4 


50  INTRODUCTION. 

not  say  how  that  would  be,  but  such  a  course  is  found 
to  be  impossible  at  present." 

43.    These    legal    presumptions    (/i)    are    of   two 
kinds.     In   most   of  them  the  law  assumes  the  exist- 
ence of  something  until  it  is  disproved  by  evidence — 
called   by  the  civilians  praesumptiones  juris,   or   prae- 
sumptiones  juris  tantum  ;  and  likewise,  by    English 
lawyers,  inconclusive  or  rebuttable  presumptions.     In 
others,  although   these  are  much  fewer  in  number,  the 
presumption  is  absolute  and   conclusive,  so   that  no 
counter-evidence  will  be  received  to  displace  it.    These 
are  called  prassumptiones  juris  et  de  jure — a  species  of 
presumption    correctly  defined,  "  Dispositio  legis   ali- 
quid  praesumentis,  et  super  proesumpto,  tanquam  sibi 
comperto,  statuentis."  (7)     To  this  class  belong  the 
contract  to  pay,  which  the  law  implies  from  the  pur- 
chase  of  goods  ;  the   intent   to   kill    or    do   grievous 
bodily    harm,    implied    from    the    administration     of 
poison,  using   deadly  weapons,  &c.     Some    may    be 
considered  as  belonging  to  universal  jurisprudence  ; 
the  principal   of  which  are,  the  presumption  of  right 
derived  from   the  continued  and  peaceable  possession 
of  property,  and   the   presumption   upholding  the  de- 
cisions of  courts  of  competent  jurisdiction.     We  have 
already  alluded  to  the  maxim,  "  Interest  reipublicae  ut 
sit  finis  litium  ; "  (/£)  to  which  must  be  added,  "  Vigi- 
lantibus  et  non  dormientibus  jura  subveniunt,"  (/)  and 
"  Ex  diuturnitate  temporis  omnia  praesumuntur  solen- 
niter  esse  acta."  (111)     If  undisturbed  possession  for  a 
very  long  time  had  not  a  conclusive  effect,  the  most 

(h)    There  are  presumptions  of  fact  tionibus,  lib.  i,  Qiuest,  3,  n.  17  ;  1  Ev. 

a*;  well   as  presumptions  of  law.     See  Poth.  £  807. 

npra,  Part  1,  §§  7  and   27,  and   infra,  (/•)  Supra,  £  41. 

bk.  3.  P1-  2. tn-  2.  (/)  2   Co.  26  b;  4  Id.  10  b  ;  82  b; 

(i)    Alciatus    de    Prwsumptionibus,  Hob.  347 ;  2  15.  &   P.  41 2  ;  5  C.  B.  74. 

part  2,  n.  3  :   Menochius  de  P'resump-  (m)  Co.  Lit.  6  b;  Jenk.  Cent.  l.Cas.91. 


JUDICIAL   EVIDENCE.  51 

valuable  rights  would  not  only  be  made  the  subject  of 
continual  dispute,  but  be  liable  to  be  divested  or  over- 
thrown when  the  original  evidences  of  the  title  to 
them  had  become  lost  or  decayed  by  time,  (n)  And 
accordingly,  among  the  various  ways  in  which  prop- 
erty may  be  acquired,  we  find  both  writers  on  natural 
law,  and  the  positive  codes  of  nations,  recognizing" 
that  of  "  prescription,"  i.e.,  uninterrupted  use  or  pos- 
session for  a  period  longer  or  shorter.  (0) 

44.  So,  it  would  be  productive  of  the  greatest 
inconvenience  and  mischief  if  after  a  cause,  civil  or 
criminal,  has  been  solemnly  determined  by  a  court  of 
competent  and  final  jurisdiction,  the  parties  could 
renew  the  controversy  at  pleasure,  on  the  ground 
either  of  alleged  error  in  the  decision,  or  the  real  or 
pretended  discovery  of  fresh  arguments  or  better 
evidence.  The  slightest  reflection  will  show,  that  if 
some  point  were  not  established  at  which  judicial  pro- 
ceedings must  stop,  no  one  could  ever  feel  secure  in 
the  enjoyment  of  his  life,  liberty,  or  property  ;  while 
unjust,  obstinate,  and  quarrelsome  persons,  especially 
such  as  are  possessed  of  wealth  or  power,  would  have 
society  at  their  mercy,  and  soon  convert  it  into  one 
vast  scene  of  litigation,  disturbance,  and  ill-will.  The 
great  principle  of  the  finality  of  judicial  decision,  is 
universally  recognized,  and  lias  been  expressed  in  the 

(/;)  "  If  time,"     1;      I  ord    Plunket,  swept  away." — I.onl  Brougham's  Ilis- 

" destroy*  the   evidence   "f  title,    the  torical    Sketches    <>f  Statesmen,    A'  . 

laws  have  wisely  and   humanely  made  vol.    2,   |>.    39,    note  — Life   "I  C.   J. 

length  "f  po  session   a  substitute  for  Bu  che, 

thai  which  ha  d.      He  Grotiu    de  Jur.  Bell,  ac  Pac.  lib. 

comes  with  1 1  ■  ^  scythe  in  one  hand  to  2,  <•.  .1  ;    Pufendorf,  Jus   Mat.  et  Geul 

mow   down    tin-    muniments    "i    out  M>.  4.  <-.  12  ;  Dig.  lib.  41,  tit.  3  ;  Cod. 

rights;  but  in  his  other  hand  the  law-  lib.  7,  lit.   33:  2   Blackst.  Comm.  ch. 

j.iwr   ha  'l    an    ho  i,    by  17;'".   Litt.    113,  114;  I  Greenl  Ev. 

which  he  metes  out,  incessantly,  tb  '  17.  7 ;  li   Ed.  j  Grand  Cousti 1   de 

portions    of   duration    which  die,  ch.   125;  Poth.  Obi,  part 

needless    t lie    evidence     that     lie     lias  3,  ch.  8  ;  Cod.  Civil,  liv.  3,  tit.  20. 


52  INTRODUCTION. 

various  forms — "  Res  judicata  pro  vcritatc  accipitur  ;  * 
(/)  "Judicium  pro  veritatc  accipitur  ;"  (^)  "  Interest 
reipublicse  res  judicatas  non  rescind! ;"  (r)  "  Proesumi- 
tur  pro  justitia  sententiae  ;  "  (i)  "  Sententia  facit  jus  ; " 
(t)  "  Infinitum  in  jure  reprobatur  ;  "  (?/)  "  Nemo  debet 
pro  una  causa  bis  vexari,"  (rtr)  &C.1 

45-   We  will  merely  add  one  other  instance,  which 
places   this    matter   in    the    strongest    light.     If   the 

(/)  Dig.  lib.  50,  tit.  17,  1.  207  ;  Mas-  (s)  Mascard.  de  Prob.  Concl.    1237 

card,  de  Prob.  Concl.   1237,  n.  13  ;  I  n.  2.     See  3  Bulst.  42,  43. 

Ev.  Potli.  part  4,  ch.   3,  sect.  3,  art.  3,  (/)  Ellesm.  Postn.  55. 

§  37  :  Co.   Litt.  103  a  ;  and   186  a  ;  n.  (u)  2   Inst.   340;  6  Co.  45  a;    8   Id. 

(3),  by  Hargr.  168  b  :   12   Co.   24;  Hob.    159;    Jenk. 

((/)  Co.  Litt.  39  a,  168  a,  236  b;  2  Cent.  2,  Cas.  15  ;  Cent.  4,  Cas.  2  and 

Inst.  3S0.  46  ;  and  Cent.  8,  Cas.  29. 

(r)  2  Inst.  360.  (x)  Jenk.  Cent.  1,  Cas.  38  ;  5  Co.  61  a. 

1  All  merely  cumulative  matter  in  evidence  or  argument, 
which  may  be  discovered  after  a  trial,  undoubtedly  should  not 
justify  a  second  or  new  trial  (Gardner  v.  Lamback,  47  Ga. 
133;  Hughes  v.  Coursey,  46  Id.  115;  Tull  v.  Pope,  69  N.  C. 
183).  But  there  are  cases  where  it  will  be  extended  as  a 
matter  of  right  (See  Brown  v.  State,  47  Ala.  47  ;  Aulkbulkley 
v.  Andrews,  37  Conn.  524;  Jackson  v.  Jackson,  47  Ga.  99 ; 
Melliken  v.  Ham,  36  Ind.  166;  Wehrum  v.  Kuhn,  34  N.  Y. 
Superior  Ct.  336;  Lloyd  v.  State,  45  Ga.  57).  So,  for  miscon- 
duct, bias,  or  disqualification  of  the  jurors  (Williams  v.  Mc- 
Grade,  18  Min.  82;  Fitzgerald  v.  People,  1  Col.  T.  56;  State 
v.  Wyatt,  50  Mo.  309;  Westmorland  v.  State,  45  Ga.  225; 
Davis  v.  State,  35  Ind.  476;  United  States  v.  Smith,  1  Sawyer, 
277;  People  v.  Guffrcy,  14  Abb.  (N.  Y.)  Pr.  N.  S.  36;  Toliver 
v.  Moody,  9  Ind.  148;  Hamilton  v.  Pease,  38  Conn.  115;  Love 
v.  Moody,  68  N.  C.  200;  State  v.  Wiseman,  Id.  203).  Surprise, 
which  ordinary  prudence  could  not  have  foreseen, — as  that  a 
witness  testified  differently  on  the  trial  from  what  he  had  on  a 
previous  trial,  and  that  no  effort  was  made  to  impeach  him, — 
has  been  neld  to  justify  a  new  trial  (Abeles  v.  Cohen,  8  Kan. 
180).  The  power  of  courts  to  grant  new  trials  is  limited,  in 
many  states,  by  statute.  Thus,  a  statute  of  Illinois  provides 
that  no  more  than  two  new  trials  shall  be  granted  in  the  same 
case  (Stanberry  v.  Moore,  56  111.  472).  So,  as  to  the  Wisconsin 
statute,  see  Stoppelfeldt  v.  Milwaukee,  &c.  R.  R.  Co.,  29  Wis. 
688;  Michigan,  People  v.  Judge,  &c,  24  Mich.  42. 


JUDICIAL    EVIDENCE.  53 

abstract  question  were  proposed,  "  What  is  the  most 
unjust  thing  that  could  be  done  ?  "  the  answer  prob- 
ably v  ould  be,  "  The  punishing  a  man  for  disobeying 
a  law  wTith  the  existence  of  which  he  was  not  ac- 
quainted." And  yet  that  must  constantly  occur 
everywhere ;  there  being  no  rule  of  jurisprudence 
more  univeisal  than  this,  that  every  person  in  a 
country  must  be  conclusively  presumed  to  know  its 
laws  sufficiently  to  be  able  to  regulate  his  conduct  by 
them,  (y) — '"  Ignorantia  juris,  quod  quisque  tenetur 
scire,  neminem  excusat."  (z)  Hard  as  this  may  seem, 
it  is  indispensably  necessary  in  order  to  prevent 
infinitely  greater  evils  ;  for  the  allowing  violations 
of  the  criminal,  or  contraventions  of  the  civil  code, 
to  pass  without  punishment  or  inconvenience,  under 
the  plea  of  ignorance  of  their  provisions,  would  render 
the  whole  body  of  jurisprudence  practically  worthless. 
If  none  were  amenable  to  the  laws  but  those  who 
could  be  proved  to  be  acquainted  with  them,  not  only 
would  ignorance  be  continually  pleaded,  in  criminal 
cases  especially,  but  persons  would  naturally  avoid  ac- 
quiring a  knowledge  which  carried  such  perilous  con- 
sequences along  with  it. 

46.  But  if  artificial  presumptions  have  their  use 
they  have  likewise  their  abuse.  In  unenlightened 
times,  or  in  the  hands  of  a  corrupt  tribunal,  they  are 
most  dangerous  instruments;  and  even  in  the  best 
times,  and  by  the  best  tribunals,  they  require  to  be 
handled  with  discretion.  Some  very  absurd  and  mis- 
chievous presumptions  of  this  kind  are  to  be  found  in 
the  works  of  the  civilians,  (a)  as  well  as  in  the  laws 

( y)  I  lig.  lib.  22,  l  [  Co.  177  b :  2  Co.  3  b  ;  6  ( '>>.  5 1  a;  1 

ad  pand.  p. u  .  1.      [46;  S<         I  ■     re-  Hale,  P.  C  42 ;  7  Car.  &  P.  4 

tal.  lib.  5.  in.  12.  D     R    :   Jur.  K.  [3;  (=)  4  Blackst.  C.  27. 

Doctor  an<l  Student,   Dial,   i,  c.  {a)  See    Struvius,    Syntagma   Juris 

Dial.  2,  cc.   l6,  46;  Plowd,  342,  343  ;  Civilis,  by  MUller,  Exercit.  28,53  *v>'i~ 


54  INTRODUCTION. 

of  modern  France  ;  (6)  and  in  this  country  juries  have 
been  frequently  advised,  if  not  directed,  by  judges,  to 
presume  tnc  grossest  absurdities  under  color  of  ad- 
vancing justice.  (V)  A  well-known  instance  of  an  ex- 
tremely violent  and  harsh  presumption,  is  to  be  found 
in  the  statute  21  Jac.  1,  c.  17;  by  which  it  was  en- 
acted, that  every  woman  delivered  of  bastard  issue, 
who  should  endeavor  privately  either  by  drowning  or 
secret  burying,  or  in  any  other  way,  to  conceal  the 
death  thereof,  so  that  it  might  not  come  to  light 
whether  it  were  born  alive  or  not,  should  be  deemed 
to  have  murdered  it,  unless  she  proved  it  to  have  been 
born  dead.  This  cruel  enactment,  which  seems  to 
have  been  copied  from  an  edict  of  Hen.  II.  of  France 
in  1556,  (d)  the  principle  of  which  is  also  to  be  found 
in  the  laws  of  some  other  countries,  (e)  lias  been 
repealed  by  the  43  Geo.  3,  c.  58,  s.  3.  The  conclusive 
effect  formerly  ascribed  to  the  confessions  of  accused 
persons,  (/")  and  to  attempts  by  flight  to  escape 
judicial  inquiry,  (^)  are  likewise  among  the  most 
general  instances.1 

note  (?).     "  Idem  dico,"  says  Bartolus,  (c)  See     infra,    bk.    3,    pt.    2,     ch. 

"si    aliquis    deprebenditur    in    domo  2. 

alicujus,  ubi  pulchra  mulier  est,  certe  (</)  Doniat,  Lois  Civile?,  part  I,  liv. 

facit    hunc   adulterium    manifestum  :"  3,  tit.  6  ;  Preambule,  note  (a) ;  and  Id. 

Comment,    in    2dam   part.    Dig.   Nov.  sect.  4,  §  2,  note  (b). 
ill  b.  Edit.  Lugd.  1581.  {e)  4  Blackst.  Comra.  198. 

(6)  See  Bonnier,  Traite  des  Preuves,  (/)  See  bk.  3,  pt.  2,  c.  7. 

§  752,  et  seq.,  2nd  ed.  (_§•)  Sec  bk.  3,  pt.  2,  c.  2. 

1  But,  in  all  systems  of  jurisprudence,  the  corpus  delicti 
must  be  first  proved  before  any  presumption  can  be  invoked 
Said  Lord  Hale  (P.  C.  29c):  "Convict  any  person  for  stealing 
the  goods,  ejusdam  ignoti,  merely  because  he  would  not  give 
an  account  how  he  came  by  them,  unless  there  were  due  proof 
made  that  a  felony  was  committed  of  these  goods.  I  would 
never  convict  any  person  of  murder  or  manslaughter,  unless 
the  fact  were  proved  to  be  done,  or,  at  least,  the  body  found 
dead."  And  so,  in  Tyner  v.  State  (6  Humphreys,  383),  it  was 
held  that  conduct,  exhibiting  satisfactory  indications  of  guilt; 


JUDICIAL     EVIDENCE.  55 

47.  There  are  some  exclusionary  rules  connected 
with  this  branch  of  the  subject,  the  absolute  necessity 
for  which  it  would  require  extreme  hardihood  to  deny. 
Wc  mean  where  evidence  is  excluded  on  the  ground 
that  its  production  would  cause  needless  vexation,  ex- 
pense, or  delay.  (//)     In  illustration  of  the  two  former, 

(//)  Bentham,   whose   work    on    Ju-  evidence  may  be   rightly  rejected  on 

dicial   Evidence   is  a  professed  attack  these   grounds,    even    at   the    risk    of 

on  artificial  systems  of  proof  in  gen-  doing  injustice.  See  vol.  i.  p.  31  ;  vol.  iv. 

eral,  admits  that  the   most   legitimate  p.  1 15  ;  and  bk.  9,  pt.  2,  cc.  1,  2,  3,  4. 

is  not  sufficient  to  sustain  a  conviction,  without  satiiactory 
evidence  that  a  crime  has  been  committed  ;  and  that  a  mere 
declaration  in  evidence,  that  the  particular  crime  has  been 
committed,  is  not  evidence  of  a  corpus  delicti.  Said  Lord 
Stowell  (Evans  v.  Evans,  1  Hagg.  Const.  R.  105):  "To  take 
presumptions,  in  order  to  swell  an  equivocal  and  ambiguous 
fact  into  a  criminal  fact,  would,  I  take  it,  be  an  entire  misap- 
plication of  the  doctrine  of  presumptions.  This  was  the 
principle  of  the  Roman  law,  '  Delegenter  cavendum  est  judici, 
ne  supplicium  praecipitet,  antequam  de  crimine  constiterit '  " 
(1  De  Crim.  in  Dig.  lib.  48,  tit.  16,  ch.  1,  Matth.),  though  against 
Sextus  Roscius,  in  whose  defense  Cicero  pronounced  one  of 
his  most  polished  efforts,  as  Mr.  Forsyth  has  pointed  out  (See 
liis  History  of  Lawyers,  N.  Y.,  Cockcroft  &  Co.,  1S75,  p.  145), 
there  appears  to  have  been  actually  no  presumption  at  all. 
And  see  the  dictum  of  Lord  1  laic  (above  quoted),  discussed 
and  disapproved  of  in  People  v.  Ruloff,  3  Parker  (N.  Y.)  C. 
R.  401,  the  court  holding  (Balcom,  J.,  dissenting),  that  where, 
on  a  trial  lor  murder,  Lhere  is  no  direct  evidence  of  I  he  corpus 

delicti,  and  it  is  evident  that  none  can  he  adduced,  it  may  he 
proved  by  circumstantial  evidence,  which  is  so  strong  and  so 
intense  as  to  produce  tin;  lull  certainty  of  death,  leaving  no 
room  for  rea  >onable  doubt.  "  I  1  annol  concur,"  said  Balcom, 
J.,  in  Iris  dissenting  opinion,  "in  sustaining  the  verdict  in  this 
•  ,  bei  au  e  the  evidence  is  su<  h  that  it  is  possible  that  the 
endant's  daughter  is  yet  living.  That  it  is  extremely  im- 
probable thai  ihe  is  living  will  not  do.  The  evidence  musl  he 
certain  that  sin:  is  dead  before  the  defendant  can  he  lawfully 
convicted"  (Id.  p.  464).  And  consult,  further,  Rulofl  v 
People,  1  I  \.  Y.  1  Smith,  [79  (where  Lord  Dale's  dictum  was 
ultimately  affirmed);  Mitchum  v.  State,  11  Ga.  615;  and  an 
able  chapter  on  "  Presumptions,"  in  Wharton  on  Homicide. 
And  see  also  Phillip.'   I.    ay  on  the  Theory  of  Presumptive 


56  INTRODUCTION. 

the  following  case  has  been  put :  (z)  "  By  laying  a 
baiTOW  lull  of  rubbish  on  a  spot  on  which  it  ought 
not  to  have  been  laid  (the  side  of  a  turnpike  road), 
Titius  has  incurred  a  penalty  of  5^.  No  man  was 
witness  to  the  transaction  but  Sempronius ;  and  in  the 
station  of  writer,  Sempronius  is  gone  to  make  his 
fortune  in  the  East  Indies.  Should  Sempronius  be 
forced,  if  he  could  be  forced,  to  come  back  from  the 
East  Indies  for  the  chance  of  subjecting  Titius  to  this 
penalty.  Who  would  think  of  subjecting  Sempronius 
to  the  vexation  ?  Who  would  think  of  subjecting 
Sempronius,  or  anybody  else,  to  the  expense  ?  "  Again, 
while  the  liberty  of  adducing  evidence  to  support  his 
cause  ought  to  be  most  freely  conceded  to  every  litigant 
— "  Facultas  probationum  non  est  angustanda"  (X')1  — 
that  liberty  might  be  so  grossly  abused  as  to  stop 
the  administration  of  justice ;  and  a  power  in  all  tri- 
bunals to  restrain  it  within  due  bounds,  is  consequent- 
ly as  essential  to  the  proper  discharge  of  their  func- 
tions, as  the  right  of  expunging  surplusage  in  forensic 
documents,  and  restraining  prolixity  in  pleading. 
"  Excessus  in  re  qualibet  jure  reprobatur  communi." 
(/)  Suppose  a  man  sued  for  a  debt,  or  an  injurious 
act  of  the  simplest  and  most  ordinary  kind,  were  to 
pretend  that  he  required  for  his  defense  the  evidence 
of  some  hundreds  of  witnesses  living  in  remote  and 
different  parts  of  the  world,  a  court  is  surely  not  bound 
to  take  his  word  or  his  oath  for  the  truth  of  this  or 
even  for  his  bona  fides  in  asserting  it.     Accordingly, 

(i)  4  Benth.  Jud.  Ev.  479,  480.  (/)  2  Inst,   232   and    107;     11    Co. 

(k)  4  Inst.  279.     See  also  Cod.  lib.      44. 
i.  tit.  5,  1.  21,  vers.  fin. 

Proof    (Famous    Cases  of   Circumstantial    Evidence,    N.    Y. 
Cockcroft  &  Co.,  1874). 

1  The  opportunity  of  proving   one's   cause   should   not    be 
rendered   difficult. 


JUDICIAL     EVIDENCE.  57 

in  the  judicial  practice  of  this  country,  a  commission 
or  mandamus  to  examine  witnesses  will  be  refused,  or 
terms  will  be  imposed  on  the  party  making  the  ap- 
plication, if  the  judges  think,  in  their  discretion,  that 
the  application  for  it  is  made  with  a  view  to  vexation 
or  delay,  or  with  any  other  sinister  or  improper  motive. 
(i?i) !  So,  we  apprehend,  a  power  (to  be  exercised 
with  great  caution  no  doubt)  is  vested  in  every 
tribunal,  of  refusing  to  hear  evidence  obviously 
tendered  for  such  purposes.  (11)  "  Ouamquam,"  says 
the  Digest,  (0)  "quibusdam  legibus  amplissimus  nu- 
merus  testium  definitus  sit :  tamen  ex  constitutionibus 
Principum  hrcc  licentia  ad  sufficientem  numerum  tes- 
tium coarcetur,  ut  judices  moderentur,  et  cum  solum 
numerum  testium,  quern  necessarium  esse  putaverint, 
evocari  patiantur;  ne  effrcnata  potestate  ad  vexandos 
homines  superflua  multitudo  testium  protrahatur."2 
Still,  in  all  these,  the  evidence  offered  might  really  be 
relevant  and  important,  and  injustice  might  be  done 
by  its  rejection. 

(m)  Pine   v.   Iron,   8    Bingh.    143;  hundreds   of    thousands    of    persons 

v.  Fisher,  4  M.  &  Scott,  458  ;  were    present.     In    order    to   prevent 

Sparkes  v.  Barrett,  5   Scott,  402  ;  1  >c  tlie   case    evei   getting  to  the  jury,  it 

I     Lit  ill.  7  Id.  i   6;    Dalton  v.  was,  as  we  are  informed,  suggested  to 

Lloyd,  (  Gal   .  [02  ;  Summi  1  •  v.  Raw-  the  defendants,  that  und<  1  pn  tense  of 

son,  3  fur.  28S  ;  Castelli  n,  16  showing  lhal  those  n  ivei     not 

Jiir.  888,  \c.  of  a   seditious   character,   they    n 

(,,)  \n   the    Irish    State   Trials   of  call    as    witnesses   every   <mc   of    the 
1843,  tip                       were  in  it  n.     This  dis- 

a  seditious  nd  among  the  honorable  mode  ol    -'  was  not 

laid   the  holding   in  re  orted  to  ;  bul   iuppo  e  il    had  i< 

diffcicnl   parts  of  tl  dom   what  musl  the  court  and  jury  have  subniit- 

i  ailed   "  moil  ti  r  mi      1         i.  e.  ted  to  il  ? 
mi                         h    of    whi(  h    te\  (0)  I  tig   lib.22,   tit.  5  1. 1,  g  2,. 

*  M<  <  :ill  v.  Sun    Mm.    In     <  ..  .  50   \.  V.  v  |  ;.     Rathbun  v. 
Ingei  ;    N.  Y.  Superior  Ct.  (J.  &  S.)  211 ;  Brand  v.  Butler, 

30  Wi ».  6   1  ;  Sydnor  v.  Palmer,  29  Wi  ■    •  ■<>. 

■  Quoi  qu'il-y-ait  certaines  lois  qui  exigenl  un  noml 
considerable  de  temoins,  cependanl  cette  nece*  ite  e  I  n 
triciit'-   pai    le istitutions  des  princes  dans  les  bornes  d'un 


58  INTRODUCTION. 

48.  The  lawgivers  of  some  countries,  sensible  of 
the  evils  that  may  be  occasioned  by  malpractices  like 
the  above,  have,  in  endeavoring  to  suppress  them,  run 
into  positive  absurdity.  We  allude  to  the  practice  of 
limiting  by  law  the  number  of  witnesses  that  may  be 
called  in  proof  of  each  fact  in  dispute,  (/)  without  re- 
gard to  the  nature  of  the  cause,  the  probity  of  the 
witnesses,  the  quantity  of  evidence  given  by  them,  or 
their  manner  of  delivering  their  testimony — things 
which  it  would  obviously  be  impossible  to  define  by 
any  rule  laid  down  beforehand. 

49.  Another  marked  feature  by  which  judicial 
proof  is  distinguished  from  other  forms  of  proof  is, 
that  the  legislator  by  whom  its  rules  are  framed  must 
look  beyond  the  contending  parties  in  each  case,  and 
weigh  the  consequences  to  society  which  may  follow 
from  the  decisions  of  tribunals.  Thus  the  mischiefs 
which  arise  from  a  blamable  passiveness  in  the  law, 
are  not  usually  so  great  as  those' which  spring  from  its 
misguided   action.     For  instance,  the    condemnation 

(/)  5  Benth.  Jud.  Ev.  521  ;  Domat,  Spanish),    thirty    witnesses     vere    and 

Lois  Civiles,  part   1,  liv.  3,  tit.  C,  sect.  are  allowed  by  Spanish  law  ;  ten  only 

3,  §   xvi.   note   (x),  vers,    fin.;    Devot.  are,  or  at  least  were,  allowed  in  French 

In  t.   Canon,    lib.    3,  tit.  g,  §   9;    De-  law.     Are   both    right?     One   French 

cretal.  Greg.   IX.  lib.  2,  tit.    20,  c.  37.  witness,  then,  is  equal  to  three  Spanish 

"To  any  given  fact  or   question  (fait  ones."     Benth.  in  loc.  cit. 
[fact],   French  :    pre^unta   [question], 

nombre  suffisant.  Les  juges  peuvent  le  fixer,  ct  ne  per- 
mettrc  d'assigner  que  le  nombre  de  temoins  qu'ils  jugeront 
neccssaire:  de  peur  qu'on  ne  prenne  de  la  occasion  d'assigner 
un  nombre  inutile  de  temoins,  dans  la  seule  intention  de  vexer 
ccux  a  qui  on  vent  du  mal  (Digeste).  Although  there  are  a 
large  number  of  laws  which  these  things  might  properly  be 
regulated  by — the  local  customs  of  rulers,  or  of  certain  locali- 
ties— yet  judges  ought  to  be  allowed  to  fix  the  necessary  num- 
ber of  witnesses  to  a  certain  point,  so  that  the  time  and 
convenience  of  courts  may  not  be  vexatiously  squandered 
and  embarrassed  by  a  useless  superfluity  of  witnesses  and 
testimony. 


y  U DIC I  A  L     E  VIDENCE. 


59 


and  punishment  of  an  innocent  man  for  a  supposed 
crime,  and  the  acquittal  of  a  guilty  one  are,  philosophi- 
cally speaking,  only  modes  of  misdecision,  diverging 
equally  from  the  truth.  But  a  very  little  reflection 
will  show  that,  taken  with  their  consequences,  the 
former  is  incalculably  the  greater  evil  ;  and  the  legis- 
lators and  jurists  of  almost  every  age  and  country  have 
recognized  the  principle, — however  violated  in  prac- 
tice,— that,  although  the  punishment  of  guilt  and  the 
protection  of  innocence  have  in  general  an  equal  claim 
in  the  administration  of  justice,  the  latter  should  be 
the  primary  care  of  the  law  ;  and  consequently  that  in 
matters  of  doubt  it  is  safer  to  acquit  than  to  condemn. 
( <j)     Again,  the  laws  of  every  country  suppress  much 


(g)  See  the  following  authorities, 
the  number  of  which  might  he  almost 
indefinitely  increased:  Dent.  xvii.  4, 
6  ;  Dig.  lib.  4S,  tit.  19.  1.  5  ;  Cod.  lib. 
4,    tit.  if;,  1.  25  ;    '  .  Jus    Bell,  ac 

Pac.  lib.  2,  cap.  23,  §  v.  n.  1  ;  Huberus, 
Prsel.  Jur.  Civ.  lib.  22,  lit.  3,  N.N.  4  & 
i<, ;  Voet,  ad  Pand.  lib.  22,  tit.  3,  N. 
18;    M.itth    de   Prob.  cap.  2,  N.20; 

ard.  de  Prob.  '  one].  3ft,  496,  497  ; 
Sanchez  de  Mat  1  iinonio,  lib.  [O,  I  »i  - 
put.  12,  N.N.  40,  41  ;  Mirror  of  Jus- 

ch.  5,  sect.  1  ;  Alms,  10S,  N.  15  ; 
'I'.  1-.  Edw.  II.  620,  Nota  1  ;   I  01 
de  Laud.  cap.  27  ;  3  [nst.  210 ;  2  Hale, 
P.  I  |0;  4  Bli  ■  om.  358  ; 

I    Stark.    Ev.    559,   ?73-   5  7 1  ■   :r".    <"' 

rim.    I     ■••    of   Scotland,  522, 
523  ;  I  lit  k  on,  Ev.  in  Scot.  162,  II 
t  Grei     i    I  13.1  and  34,  —If! 

Burrill,  Ci       I 
"Fro  ;ment  sur  le    I 
( Iriminelle  ;"   Beccaria,    1 1  1    Delitti  c 
I  ci   the  ■■•    may   be 
1  evi  11  the   1  ■   law,  ii 

may    rely    on    a    work    entitled    " 
Chines-,"   by  J.   I'.    I  >     is,  vol.   1 .  p. 
394,   A.  I).  1  ipi  1  ed    in    "  The 


Library  of  Entertaining  Knowledge." 
It  is  worthy  of  observation,  that 
although,  as  appears  from  some  of  the 
above  references,  the  principle  in 
question  was  fully  recognized  by  the 
civilians  and  canonists,  they  reversed 
the  rule  in  those  cases  w  lure  innocence 
chiefly  requires  protection;  and  their 
maxim,  "In  atrocissimis  leviores  con- 
jectures sufficiunt,  et  licet  judici  jura 
transgredi:"  beccaria,  Dei  Delitti  e 
Pene,  $  8,  in  not. ;  see  also 
ard.  de  Prob.  Concl.  1392,  N.  13; 
Bui  nett1  ( !i  im.  Law  of  Scotland,  012 
— will  remain  a  lasting  monum  nl  ol 
the  barbarity  as  well 
of  its  frameis.  Nor  are  these  merely 
tin-    notions   "f    I  In  a 

mon-law 
1 .     the     I1  iIIom  ing     pa  "  Plus 

I  1  ,i- ■  lai.i  1  >  1 . •  ■  iumpl ione  i  in  causis  civ- 
ilibu  •,  quam  in  criminalibu  .  in  quibus 

mentibu  >,  condemnandu 
crimine  hsci  1.111- 

quam     1  1  ond  mnal  ir,    nisi 

omnem    u  p 

vela    ,     I  ii.n.    vol.     2,    p.     tl6, 

i -;52.     Superiorum   faculcate) 


6o 


INTRODUCTION. 


evidence  that  would  be  relevant  or  even  conclusive, 

where  its   reception  would  involve  the   disclosure  of 
matters  of  paramount  importance,  which  public  policy 

I  he  English  law  goes  further  in  the  these  rules,  by  every  suspicion  of 
osite  direction  than  that  of  most  danger,  or  by  the  mere  possibility  of 
countries,  for  it  lays  down  as  a  confounding  the  innocent  with  the 
maxim,  that  it  is  better  several  guilty  guilty.  They  ought  rather  to  reflect, 
persons  should  escape  than  that  one  that  lie  who  falls  by  a  mistaken  sen- 
innocent  person  should  suffer  (2  Hale,  tence,  may  be  considered  as  falling  for 
['.  C.  2S9  ;  4  Blackst.  Con-.  358);  the  his  country  ;  whilst  he  suffers  under 
salutary  fruit  of  which  is,  that  in  no  the  operation  of  those  rules,  by  the 
part  of  the  world  is  genuine  voluntary  general  effect  and  tendency  of  which 
evidence  against  suspected  criminals  the  welfare  of  the  community  is  main- 
more  easily  procured  than  in  England  ;  tained  and  upheld."  It  will  not,  how- 
the  persuasion  being  general  through-  ever,  be  difficult  to  expose  the  fallacy 
out  society,  that  if  a  suspected  man  be  of  this  pernicious  and  inhuman  argu- 
really  innocent,  the  law  will  take  care  ment.  It  is  perfectly  true  that  the 
that  no  harm  shall  happen  to  him.  security  of  civil  life  is  the  first  object 
The  principles  on  which  this  noble  of  all  penal  laws,  and  that  that  se- 
and  politic  maxim  rests  are  not,  curity  is  chiefly  protected  by  the  dread 
however,  generally  understood.  The  of  punishment  ;  but  then  it  is  a  pun- 
strongest  proof  of  this  is  to  be  found  ishment  as  a  consequence  of  guilt,  and 
in  the  singular  fact  of  its  having  been  not  of  punishment  falling  indiscrim- 
formally  attacked  by  the  celebrated  inately  on  those  who  have  or  have  not 
Dr.  Paley,  in  his  "  Moral  and  Political  provoked  it  by  their  crimes.  When 
Philosophy,"  bk.  6,  ch.  9,  who  desig-  the  guilty  escape,  the  law  has  merely 
nates  it  a  popular  maxim,  having  a  failed  of  its  intended  effect  ;  but  when 
considerable  influence  in  producing  the  innocent  become  its  victims,  it 
injudicious  acquittals,  and  argues  thus  injures  the  very  persons  it  was  meant 
against  it  :  "  The  security  of  civil  to  protect,  and  destroys  the  security  it 
life,  which  is  essential  to  the  value  and  was  meant  to  preserve.  Nor  is  this 
the  enjoyment  of  every  blessing  it  all,  or  even  the  worst  ;  for  it  is  a  great 
contains,  and  the  interruption  of  mistake  to  suppose  that  the  actual 
which  is  followed  by  universal  misery  wrong  and  violence  clone  to  the  inno- 
and  confusion,  is  protected  chiefly  by  cent  man,  are  the  only  evils  resulting 
the  dread  of  punishment.  The  mis-  from  an  erroneous  conviction.  Con- 
fortune  of  an  individual,  for  such  may  fidencc  in  the  administration  of  justice 
the  sufferings,  or  even  the  death,  of  an  must  necessarily  be  shaken  when 
innocent  person  be  called  when  they  people  reflect,  and  can  truly  reflect, 
are  occa  iioned  by  no  evil  intention,  that  every  individual  they  see  con- 
cannot   be  placed   in  competition  with  clemned  to  punishment  may  be  in  the 

.  this  object When  certain  rules  highest  degree  unfortunate,  and    in  no 

of     adjudication     mu-t     be    pursued,  degree    guilty,    his    sufferings     being 

when    certain    degrees    of    credibility  inflicted    merely    as    a    .sacrifice    to    a 

must   be   accepted,  in    order   to  reach  supposed   expediency.      Under  such  a 

the  crimes  with  which   the  public  are  system,   few  would   care   to  prosecute 

infested,  courts   of  justice   should   not  for   offenses,  still  fewer  to  come  for- 

be   deterred   from   the   application  of  ward  with  voluntary  testimony  against 


JUDICIA  L     E  VIDENCE. 


61 


and  social  order  require  to  be  concealed  ;  such  as  se- 
crets of  state,  communications  made  in  professional 
confidence,  and  others,  (r) 

50.  Another  great  difference  between  legal  and 
historical  evidence  lies  in  the  securities  for  truth,  and 
the  sources  of  danger  and  deception  peculiar  to  each. 
Posterity  and  future  ages  are  not  unfrequently  spoken 
of  as  a  tribunal,  to  whose  judgment  appeals  may  be 

persons  accused  or  suspected  of  them.  ful  state  into  which  the  administration 

The    law  might,  indeed,  sit   in  terrific  of  justice  had  fallen  under  the  ancien 

majesty,     denouncing     the      severest  regime  in  that  country.      But  another 

penalties,    and    acting    on     the    most  evil,  which   seems  to   have  altogether 

sanguinary  and  strained    maxims,  but  escaped    the   notice   of  Dr.   Paley,  re- 

for  want   of    proofs    and    co-operation  mains  to  be  mentioned.    "  Instances," 

on  the  part  of  society,  those  penalties  observes  Sir  Samuel  Romilly,  "  have 

would  soon  become  a  dead  letter.     It  indeed   occurred    like    that   of    Calas, 


requires  strong  imaginative  powers  to 
an  analogy  between  the  fate  of  a 
soldier  dying  in  the  defense  of  his 
country,  and  that  of  an  innocent 
victim  butchered   in  cold   blood  under 


where  a  man  has  been  offered  up  as  a 
sacrifice  to  the  laws,  though  the  laws 
had  never  been  violated  :  where  the 
tribunals  have  committed  the  double 
mistake   of  supposing   a   crime  where 


the    name  of  justice.     The    one  falls      none    had    been    committed,    and    of 
with   honor,  his   memory  i  ected,       finding  a  criminal  where    none   could 


his     family,    perhaps,     provided     for; 
while  the    latter  ha^  not  even   the  sad 
consolation  of   being   pitied,  but 
himself    branded    with     public    igno- 
miny, and    leaves  a    name   which   will 
excite  nothing  but  horror  or  deti 
tion  ;  until,  peril 
hi  •   inni  icence  bei  ■  inly 


exist.  These,  however,  are  very  gro  - 
and  therefore  very  rare  examples  of 
judicial  error.  In  most  cases  the 
crime  is  ascertained,  and  to  discover 
the  author  is  all  that  remains  for 
investigation  ;  and,  in  every  such  case, 
if  there  follow  an  erroneous  convic- 
tion, a  two  fold  evil  must  be  incurred, 


to   awaken    in    all    '  guilt)  ■■    well  as  the 

portion  of  the  community  a  feeling  of  "I    the  innocent.      Perhaps 

alarm  and  <l  I    e  amid  t   t  d    ..1    those    who  are 

(  urity  under  wh.  d   criminal, 

the  (  t  ten  of  the  mo  I  d    perate  \  i    led  oul  to  ex<  may 

criminal  ,"  emphatically  asks  Sir  Sam-  be   linking   the    real    murderer,  who, 

uel  Romilly,  in  hi     "  I  >  ■  in  while  he  1  ontempl  iti  .  the  fate  ol  the 

the  Law  of   England,  &c."  w  him,  reflects  with  scorn 

D.), — from  which     ome  'f  the  upon   thr   imbecility  of  the   law,  and 

pi'  --n, —  bi         -  ed,  and  deri 

'have  ever]  las  much  mischief  n  .    in    the    dai 

to    01  ety  as  did  the  public  executions  1         1  on  which  h    ha    enl  red."     3e 

of    Calas,   of    D  Anglade,   or    of    Le  further  <>n  this  subject,  infra,  Ik.  1 

Brun?" — three  ci  ich  pt.  1. 

occurred  in  France,  and  show  the  I  See   infra,  bk    3,  pt.  2,  ch.  8. 


62  IN  TROD  UC  Tl 'ON 

made  from  the  decisions  of  the  present;  and  viewed  as 
a  figure  of  speech  there  is  no  impropriety  in  this.  But 
figures  must  not  be  mistaken  for  facts.  The  tribunal 
of  posterity  differs  immensely  from  all  others ;  for  it  is 
one  of  unlimited  jurisdiction,  both  judicial  and  inquisi- 
torial ;  it  is  ever  sitting,  ever  investigating,  ever  judg- 
ing ;  barred  by  no  prescription,  bound  by  no  estoppel, 
and  responsible  to  no  human  authority.  The  securities 
for  the  truth  of  the  records  and  traditions  of  the  past, 
which  time  has  brought  down  to  us,  consist  in  the 
multitude  of  sources  to  which  they  can  be  traced,  the 
large  number  of  persons  whose  interest  it  has  been  to 
preserve  them  from  oblivion  and  corruption  ;  above 
all,  the  permanent  effects  of  events ;  visible  in  the 
shape  of  monuments  and  other  pieces  of  real  evidence, 
(s)  customs,  ceremonies,  and  the  like  ;  and,  finally,  the 
actors  in  the  scene  having  passed  away,  there  is  rarely 
either  opportunity  or  interest  to  fabricate  evidence,  in 
furtherance  of  their  views  or  justification  of  their  con- 
duct. Now,  in  the  case  of  a  legal  investigation  before 
a  judicial  tribunal,  properly  so  called,  all  this  is  re- 
versed. The  judge  or  jury,  as  the  case  may  be,  must 
decide  once  for  all  on  such  evidence  as  may  come  be- 
fore them  ;  the  facts — the  res  gestae  of  the  dispute — 
are  known  but  to  few,  and  are  matter  of  interest  to 
fewer  ;  while  the  parties  who  are  best  acquainted  with 

(s)  The  following  passage  is  taken  bottles    are    perpetually   being    found 

from  a  review  in  the   Examiner  news-  after    many  days Many   an 

paper   of  Laing's   "  Descriptive  Cata-  obscure    allusion    in    ancient    autho/s 

logue    '-f    Impressions    from    ancient  has   been  illuminated  by  the  pure  ray 

Scottish  Seals,"  December  28th,  185c:  serene  emitted  by  a  graven  gem.    The 

"  Seals  and  coins  may  be  considered  as  scholar  will    often    find    sermons    in 

bottles    filled    with    memoranda,   and  these    stones,    excelling    the    Iucubra- 

cast   upon    the   ocean   of  time   by  the  tions  of  the  commentators  no  less  in 

earlier  mariners,  fur  the  use  <>f  those  clearness  than   in   terseness  ;  and    he 

who   came  after   them.      Their   forts,  may    sometimes    be    put    right    by    a 

their  factories,  their  light-houses,  have  scarabasus,  when  a  scholiast  has  failed 

many   of  them   disappeared  ;  but   the  him." 


JUDICIAL     EVIDENCE.  63 

the  truth  stand  in  a  hostile  position  to  each  ether,  and 
have  a  stake  at  issue  which  places  them  under  the 
strongest  temptation  to  misrepresent  it.  Hence  it  is 
obvious,  that  without  peculiar  guarantees  for  the  verac- 
ity and  completeness  of  the  evidence  adduced  in  courts 
of  justice,  they  would,  when  investigating  disputed 
facts,  be  exposed  to  the  same  risks  of  error  as  the  his- 
torian, without  the  safe-guards  which  he  possesses — 
in  a  word,  the  legislator  dealing  with  judicial  evi- 
dence, is  bound  to  frame  characteristic  securities  to 
meet  characteristic  dangers. 

51.  This  distinction  between  historical  and  legal 
proof  may  be  illustrated  by  the  consideration  of  deri- 
vative, or  second-hand,  evidence.  The  infirmity  of 
this  kind  of  proof  has  been  already  pointed  out,  (7) 
and  indeed  is  one  of  those  self-evident  things  to  which 
the  mind  of  man  at  once  assents.  It  is  equally  clear, 
hat  the  further  evidence  is  removed  from  its  primary 
source  the  weaker  it  becomes ;  thus  hearsay  evidence 
becomes  more  suspicious  and  dangerous  according  as 
it  is  reported  at  second,  third,  fourth,  or  fifth  hand. 
And  yet,  in  inquiring  into  the  events  of  past  ages,  it 
is  scarcely  possible  to  move  a  step  without  resorting 
to  this  kind  of  evidence.  Supposing  that  the  events, 
sacred  and  profane,  which  took  place  in  I  he  first  year 
of  tin  Christian  era  existed  solely  in  oral  tradition, 
and  taking  a  generation  to  last  thirty  years;  the 
account  which  persons  at  the  commencement  of  the 
present  century  had  of  these  events,  would  seem  to 
have  come  to  them  by  hearsay  at  the  sixtieth  hand  ; 
evidence,  the  value  of  which  in  a  court  of  justice  would 
be  rightly  estimated  at  zero,  if  not.  below  it.  And  al- 
though the  fact,  that  accounts  of  many  of  those  events 
have  been  committed  to  writing,  affords  a  better  secu- 

(/)  Supra,  part  1,  g  30. 


64  INTRODUCTION. 

rity  for  their  truth,  still  the  genuineness  of  the  docu- 
ments  in  which  they  are  recorded  rests,  in  part  at  least, 
on  oral  tradition.  But  it  is  a  great  mistake  to  suppose, 
that  the  real  probative  force  of  the  evidence  of  those 
facts  which  wTe  possess  in  the  present  century,  rises  no 
higher  than  this  reasoning  would  indicate.  The  fallacy 
consists  in  treating  each  generation  as  one  single 
person,  by  whom  a  bare  relation  of  the  fact  has  been 
handed  down  to  the  next,  instead  of  as  consisting  of 
a  number  of  persons  interested  in  ascertaining  its 
truth ;  and  in  wholly  overlooking  the  corroborative 
proofs  supplied  by  permanent  memorials  and  the  acts 
of  men.  In  short,  as  a  modern  historian  has  well 
expressed  it,  (?/)  "  The  presumption  of  history,  to 
whose  mirror  the  scattered  rays  of  moral  evidence 
converge,  may  be  irresistible,  when  the  legtd  inference 
from  insulated  actions  is  not  only  technically,  but 
substantially,  inconclusive." 

52.  The  offering  to  prove  a  historical  fact  by  de- 
rivative evidence  afford,  therefore,  not  the  slightest 
presumption  of  unfairness ;  unless  when  the  evidence 
is,  on  its  face,  a  substitute  for  some  other  which  might 
have  been  procured,  (x)  But  derivative  evidence 
offered  in  a  court  of  justice,  in  proof  of  recent  events, 
by  a  litigant  party  whose  avowed  object  is  to  obtain  a 
decision  in  his  own  favor,  carries  so  strong  an  appear- 
ance of  fraud,  that  the  laws  of  most  nations  either 
reject    it,  or  look  upon  it  with  suspicion,  (jj/)     The 

(it)   Hallam's  Constitutional  History  has   always    urged    me    to   study    the 

of  England,  vol.  2,  p.  106,  7th  ed.  originals;  and  if  they  have  sometimes 

(x)  fiibbon,  who  was  not  a  lawyer,  eluded    my    search,    I    have    carefully 

thus  expresses  himself  in  the  Preface  marked    the    secondary    evidence,    on 

to  the  fourth  volume  of  ii:     II     toryof  whose   faith   a  passage   or  a  fact  were 

the    Decline  and    Fall   of  the   Roman  reduced  to  depend." 

Empire:    "I   have  always  endeavored  (y)  Infra,  bk.  I,  pt.  2      and   bk.  3, 

to  draw  from   the   fountain   head;  my  pt.  2,  ch.  4. 
curiosity,  as  well   as  a  sense  of  duty, 


JUDICIAL     EVIDENCE.  65 

English  law  in  general  rejects  it ;  but  reverses  the  rule 
in  many  cases  where  the  matter  to  be  proved  has 
taken  place  so  long  ago,  that  the  original  evidence  is 
manifestly  unattainable,  and  thus  far  partakes  of  a 
historical  fact,  (z) 

53.  The  greatest  misconceptions  and  errors  have 
arisen  from  confounding  legal  with  philosophical  and 
historical  evidence.  There  is  a  well-known  anecdote 
of  Sir  Walter  Raleigh,  which  will  serve  to  illustrate 
this.  While  a  prisoner  in  the  Tower,  composing  his 
History  of  the  World,  a  disturbance  arose  under  his 
window,  and  being  unable  to  ascertain  its  merits 
through  the  conflicting  accounts  which  reached  him, 
he  is  said  to  have  uttered  an  exclamation  against  the 
folly  of  relying  on  narrations  of  the  events  of  past 
ages,  when  there  is  so  much  difficulty  in  arriving  at 
the  truth  of  those  happening  immediately  around 
us.  (#)  But  in  that  investigation  he  was  discharging 
a  quasi-judicial  function,  without  the  compulsory 
powers  possessed  by  courts  of  justice  for  extracting 
truth,  and  laboring  under  the  further  disadvantage  of 
imprisonment ;  while  in  dealing  with  the  events  of 
past  ages  he  had  the  benefit  of  the  securities  for  his- 
torical  truth  already  described.  (<$)  Much  also  of 
Professor  Greenleafs  "  Examination  of  the  Te  timony 
of  the    Four  Evangelists  by  the   Rules  of  Evidence 

Infra,  bk.  3,  pt.  2,  ch.  4.  "Wit-  a  recent   transaction    the  citizens  of 

nes                i  her  ancient  01   modern,  Tened        |          d    tli       minority   of 

that  is,  contemporary Ancient  Periander,  the  wise  Corinthian,  in  > 

witu                           i     the    poets   and  dispute  with  the  inhabitants  ol  Sigeun 

I    wi  it'-i  s,  w  hose   an-      <  oni  erni  mon    boundari 

thority  for  certain  1  ....     Thei  e  bear  1            e  ol 

embodied    in    their    immortal    worl  1.  the    pa  t,  &c." — Ari  lollc's    Rhetoric, 

Thu     the    Athenian      produced    the  bk.  I,  ch.  15,  a     freely  translated    hj 

testimony  ol    I  (omi  1  for  their  right  <>f  <  lillii 

domii                                                   ,ni  („;  Barrow's    History    of    Ireland, 

on  to  the  pretensions  of  the  vol.  1,  p|>.  25,  26. 

commonwealth   of    Megan  ;    and    m  (0)  Supra,  ££  50,  51. 
5 


66  IN  TROD  UC  TION. 

administered  in  Courts  of  Justice  "  is  founded  on  the 
same    mistake.1      Nowhere,  however,  are    the  conse- 

1  Various  versions  of  this  story  exist,  the  one  most  fre- 
quently repeated  appearing  to  be  as  follows: — Sir  Walter  was 
engaged  in  writing  a  History  of  the  World  during  his  impris- 
onment. Standing  at  a  window  which  commanded  the  tower 
court,  he  saw  a  courtier  cross  the  pavement,  followed  by  his 
servant,  when  suddenly  the  courtier  turned,  felled  his  servant 
to  the  earth,  and  left  him  dead.  Happening  to  mention  the 
occurrence  to  a  friend,  he  was  assured  that  the  matter  was 
quite  the  other  way;  that  the  servant  had  intact  killed  the 
courtier.  Disputing  this  state  of  the  case,  upon  the  evidence 
of  his  own  eyes,  he  was  confronted  with  such  indisputable 
evidence  of  the  truth  of  the  contradictory  version,  that  he 
burned  his  manuscript,  declaring  that  if  he  could  not  give  an 
accurate  account  of  what  passed  under  his  own  eyes,  he  could 
not  describe  occurrences  of  the  years  before  he  was  born  ! 

But  Judge  Greenleaf 's  work  was  not  an  attempt,  like  Sir 
Walter's,  to  accommodate  historical  evidence  to  his  own  im- 
pressions, or  to  later  testimony,  but  to  try  the  case,  as  it  were, 
upon  the  documents  themselves,  by  the  light  of  the  rules: 

I.  That  every  document,  apparently  ancient,  coming  from 
the  proper  repository  or  custody,  and  bearing  on  its  face  no 
evident  marks  of  forgery,  the  law  presumes  to  be  genuine, 
and  devolves  on  the  opposite  party  the  burden  of  proving  it 
to  be  otherwise. 

II.  That  in  matters  of  public  and  general  interest  all  per- 
sons must  be  presumed  to  be  conversant,  on  the  principle  that 
individuals  are  presumed  to  be  conversant  with  their  own 
a  flairs 

III.  That  in  trials  of  fact,  by  oral  testimony,  the  proper 
inquiry  is,  not  whether  it  is  possible  that  the  testimony  may 
be  false,  but  whether  there  is  sufficient  probability  that  it  is 
true. 

IV.  That  a  proposition  of  fact  is  proved  when  its  truth  is 
established  by  competent  and  satisfactory  evidence,  and  that 
in  the  absence  of  circumstances  which  generate  suspicion, 
every  witness  is  to  be  presumed  credible  until  the  contrary  is 
shown,  the  burden  of  impeaching  his  credibility  lying  on  the 
objector;  and  that  the  credit  due  to  the  testimony  of  witnesses 
depends  upon,  firstly,  their  honesty;  secondly,  their  ability; 
thirdly,  their  number,  and  the  consistency  of  their  testimony; 
fourthly,  the  conformity  of  their  testimony  with  experience; 
and  fifthly,  the  coincidence  of  their  testimony  with  collateral 


JUDICIAL     EVIDENCE.  67 

quences  of  confounding  the.  two  kinds  of  evidence  so 
visible  as  in  Bentham's  work  on  Judicial  Evidence. 
He  entertains  the  most  erroneous  notions  as  to  the 
nature  and  use  of  the  rules  which  regulate  the  burden 
of  proof ;  (V)  and  seems  to  consider  every  issue  raised 
in  a  court  of  justice  as  a  philosophical  question,  the 
actual  truth  of  which  is  to  be  ascertained  by  the  tri- 
bunal at  any  cost ;  or,  should  this  be  impracticable, 
then  that  a  decision  is  to  be  given  founded  on  the  best 
guess  that  can  be  made  at  it.  Thus,  speaking  of  the 
laws  which  require  a  plurality  of  witnesses  in  certain 
cases,  be  says,  (d)  "  Every  man  is  excluded,  every 
man,  be  he  who  he  may,  unless  he  comes  with  an- 
other in  his  hand.  Two  propositions  are  here  as- 
sumed ;  all  men  are  liars  and  all  judges  fools.  With- 
out the  second,  the  first  would  be  insufficient."  The 
illogical  character  of  this  reasoning  is  obvious  at  a 
glance.  What  the  law  says  in  such  cases  is  this — the 
witness  may  be  a  liar,  and  the  judge  may  be  a  fool ; 
and  the  mischief  which  might  be  caused  by  the  folly 
of  the  one  set  in  motion  by  the  mendacity  of  the 
other,  would  so  greatly  exceed  any  advantage  that 
could  result  from  a  decision  based  on  their  united  ver- 
acity and  wisdom,  that  for  the  benefit  of  the  com- 
munity we  arresl  the  inquiry.  Perhaps,  however,  the 
most  glaring  instance  of  this  error  is,  where  he  con- 
tends with  so  much  earnestness  and  vehemence,  (hat 
confidential  communications  between  clients  and  their 

legal  advisers  ought  not    to    be  held   sacred  by  law  ; — 

an    argument     founded   on    the    assumption,  that    the 

(c)  See  r  Benth.  Jud.  Ev.  36.  (,/)  4    Benlh.  Jud.    Ev.  503.     See 

also  5  Id.  463,  46 ). 

circumstances.  The  Testimony  of  the  Evangelists,  exam- 
ined by  the  Rules  of  Evidence  administered  in  Courts  of 
Justice.  By  Simon  Green  leaf,  LL.D.  New  York  :  J.-unes 
Cockcroft  &  Co.,  1874,  pp.  1-54. 


68  INTRODUCTION. 

compelling  their  disclosure  would  abvance  the  ends 
of  justice,  by  depriving  evil-disposed  persons  of  pro- 
fessional assistance  in  carrying  out  unrighteous 
plans  (e) — we  say  "  unrighteous,"  for  to  projected 
violations  of  the  law  no  professional  adviser  is  ex- 
pected, or  ought  for  one  moment,  to  render  himself 
party.  If,  indeed,  the  existing  rule  were  suddenly 
altered,  and  everything  hitherto  communicated  in 
professional  confidence,  under  the  assurance  that  it 
would  be  kept  inviolate,  were  laid  open  to  the  view 
of  the  courts,  much  valuable  evidence  would  doubt- 
less be  obtained  ;  but  the  first  harvest  of  this  kind 
would  be  the  last,  for  in  future  no  such  communica- 
tions would  be  made,  either  by  honest  or  dishonest 
clients.  It  is  difficult  to  paint  in  too  strong  colors  the 
evils  of  mch  a  state  of  things.  For  want  of  materials 
on  which  to  form  a  judgment,  legal  advice  would  be- 
come of  little  worth  ;  and  for  want  of  materials  to 
prepare  it,  cross-examination,  the  most  powerful  in- 
strument for  the  extraction  of  truth,  would  be  con- 
verted into  a  lifeless  form.  Besides,  it  is  a  great  mis- 
take to  suppose  that  a  man's  case  must  necessarily  be 
bad  as  a  whole,  because  there  is  some  weak  point  in 
it.  Nor  is  this  all.  A  professional  adviser  often  can- 
not discharge  his  functions  with  effect,  unless  informed 
respecting  matters  connected  with,  though  not  consti- 
tuting, the  subject  of  inquiry  ;  the  public  disclosure 
of  which  might  be  so  injurious,  that  the  client  would 
sooner  abandon  his  action  or  defense,  than  even  run 
the  risk  of  such  a  calamity,  by  having  his  counsel  or 
attorney  subpoenaed  as  a  witness  against  him. 

54.  The  securities  which  have  been  devised  by 
municipal  law,  for  insuring  the  veracity  and  complete- 
ness of  the    evidence  given  in  courts  of  justice,  vary 

(*)  Benth.  Jud.   Ev.  bk.  9,  pt.  4,  ch.  5,  sect.  2. 


JUDICIA  L     E  VIDENCE. 


69 


as  might  be  expected,  in  different  countries,  and  with 
the  systems  of  law  to  which  they  are  attached. 
Several  of  those  principally  relied  on  by  the  English 
law  ;  such  as  the  publicity  of  judicial  proceedings,  the 
compulsory  presence  of  witnesses  in  open  court,  the 
right  of  cross-examination,  &c,  will  be  considered 
in  their  place  ;  (/")  for  the  present  we  will  merely 
point  attention  to  a  few  which,  either  from  their 
value  or  general  adoption,  deserve  particular  notice. 

55.  To  the  three  sanctions  of  truth  which  have 
been  described  in  the  preceding  part  of  this  Introduc- 
tion, (g)  the  municipal  laws  of  most  nations  have 
added  a  fourth  ;  which  may  be  called  the  legal,  or 
political  sanction,  (//)  and  consists  in  rendering  false 
testimony  an  offense  cognizable  by  penal  justice. 
The  punishment  of  this  offense  has  varied  in  different 
ages  and  places  ;  in  England,  it  is  a  misdemeanor 
punishable  by  fine,  imprisonment,  or  penal  servi- 
tude, (i) 

56.  The  next  security  is  a  very  remarkable  one  ; 
and  consists  in  requiring  all  evidence  given  in  courts 
of  justice  to  be  given  on  oath — according  to  the 
maxim  "  In  judicio  11011  creditur  nisi  jurat  is."  (/•) 
Oaths,  however,  it  is  well  known,  are  not  peculiar  to 
courtsof  justice,  nor  are  they  even  the  creatures  of 
municipal  law — having  been  in  use  before  societies 
were  formed  or  cities  buill  ;  and  the  mosl  solemn  acts 
of  political  and  social  life  being  guarded  by  their 
sanction.  "  Non  esl  arctius  vinculum  inter  homines 
quam  jusjurandum."  (/)  And,  however  abused  or 
perverted  by  ignorance  and  superstition,  an  oath  has 
in  every  age  1"  en  found  to  supply  the  strongest   hold 


(/)  In)  fa,  ».k.  I,  pi.  I. 
(j  )  Supra,  pt.  1.  ;'.'  ll 
(A)  1  Benth.  Jud.   1  J,  221. 


(*'  )    f>r/>.r,  bk.  3,  )>t.   2,  til.   IO. 

(/■)  <  !ro.  <  .11.  <  i        e  also  3  In»t.  79 
(/)  J.  '  as.  54. 


jo  IN  TROD  UC  TION. 

on  the  consciences  of  men,  either  as  a  pledge  of  future 
conduct  or  as  a  guarantee  for  the  veracity  of  narration. 
57.  An  oath  is  an  application  of  the  religious 
sanction — "  Jurare  est,  Deum  in  testem  vocare,  et  est 
actus  divini  cultus."  (m)  It  is  calling  the  Deity  to 
witness  in  aid  of  a  declaration  by  man ;  (it)  and  con- 
sequently does  not  depend  for  its  validity  on  peculiar 
religious  opinions  of  the  person  by  whom  it  is  taken 
The  Roman  Emperor,  we  are  told,"jurejurando  quod 
piopria  superstitione  juratum  est,  standum  rescripsit  ": 
(0)  and  Lord  Chief  Justice  Willes,  in  his  celebrated 
judgment  in  Omichund  v.  Barker,  (J>)  expresses  him- 
self as  follows  : — "  Oaths  were  constituted  long  before 
Christianity,  were  made  use  of  to  the  same  purposes 
as  now,  were  always  held  in  the  highest  veneration, 
and  are  almost  as  old  as  the  creation.  '  Juramentum 
nihil  aliud  est  quam  Deum  in  testem  vocare  ; '  and, 
therefore,  nothing  but  the  belief  of  a  God,  and  that  he 
will  reward  and  punish  us  according  to  our  deserts,  is 
necessary  to  qualify  a  man  to  take  an  oath.  We  read 
of  them,  therefore,  in  the  most  early  times.  If  we  look 
into  the  Sacred  history,  we  have  an  account  in  Gene- 
sis, ch.  26,  v.  28  &  31,  and  again  Gen.  ch.  31,  v.  53,  that 
the  contracts  between  Isaac  and  Abimelech,  and  be- 
tween Jacob  and   Laban,  were   confirmed   by  mutual 

(wz)  3    Inst.    165.     In    the  laws  of  Dieu  lui-meme  aurait  prete  de  toute 

some     countries    witnesses    were    re-  eteinite,  et  dont  la  creation  serait  l'ac- 

quiied  to  give  their  evidence  fasting.  complissement.      On    sent    bien    que 

Devot.  Inst.  Canon,  lib.  3,  tit.  9,  §  12,  cette  explication,  comme  la  plupart  de 

not.  (1).  celles  que  donne  la  philosophic  sur  le 

(11)  "Le  sennent  est  l'attestation  de  mysterieux   problenie   de   l'origine   du 

la  Divinite  a  l'appui  dune  declaration  monde,  est   plus   obscure   que    le   fait 

de   l'homme.     Ce    temoignage    de    la  merne  a  expliquer." — bonnier,  Traitc 

croyance   des   peuples   a   une   justice  des  Preuves,  §  340,  2nd  ed. 

supreme,    se    retrouve    dan-,    tons    les  (<>)  Dig.  lib.  12,  tit.  2,  1.  5,  §  1. 

pays  et  dans  tous   les  temps.      1'vt  ia-  (/>)  Willes,  545,  et  seq.    The  case  is 

gore   pretendait    nieme   que  le  monde  also   reported.  1    Atk.  49,  mora.    Omi- 

devait   son  origine,  a  un   sennent  que  chund  v.  Barker. 


JUDICIAL     EVIDENCE.  71 

oaths ;  and  yet  the  contracting  parties  were  of  very 
different  religions,  and  swore  in  a  different  form."  The 
Lord  Chief  Justice,  after  citing  several  passages  and 
examples,  both  from  the  Old  and  New  Testament,  as 
well  as  the  ancient  heathen  poets  and  authors,  to- 
gether with  some  modern  authorities,  and,  among 
others,  Grotius,  De  Jure  Belli  ac  Pacis,  lib.  2,  c.  13, 
sect.  1,  {(f)  in  support  of  this  position,  proceeds  thus  : 
'  The  forms  indeed  of  an  oath,  have  been  always 
different  in  all  countries,  according  to  the  different 
laws,  religion,  and  constitution  of  those  countries. 
But  still  the  substance  is  the  same,  which  is,  that  God 
in  all  of  them  is  called  upon  as  a  witness  to  the  truth 
of  what  we  say.  Grotius,  in  the  same  chapter,  sect. 
10,  says,  forma  jurisjurandi  verbis  differt,  re  convenit. 
There  are  several  very  different  forms  of  oaths  men- 
tioned in  Seldon,  vol.  ii.  p.  1470;  (r)  but  whatevei 
the  forms  are,  he  says,  that  it  is  meant  only  to  call 
God  to  witness  to  the  truth  of  what  is  sworn.  '  Sit 
Deus  testis,'  '  Sit  Deus  vindex,'  or  '  Ita  te  Deus  adju- 
vi  t,'  are  expressions  promiscuously  made  use  of  in 
Christian  countries;  and  in  ours  that  oath  hath  been 
frequently  varied,  as  '  Ita  te  Deus  adjuvet,  tactis  sae- 
rosanctis  I)<i  evangeliis  ; ' — '  Ita,  &c,  ct  sacrosancta 
I  )<  i  cvanuelia;' — 'Ita,  <x.c.,  et  omnes  saneti.'  And 
now  we  keep   only  these  words  in  the   oath,  '  So   help 

you  God;'  and  which  indeed  are  the  only  material 
words,  and  which  any  heathen  who  believes  a  God 
may  take  as  will  a  i  Christian.  The  kissing  the  book 
here, and  the  touching  the  Brahmin's  hauj  and  foot  at 
Calcutta,  and  many  Othei  different  forms  which  are 
made  use  of  in  different  countries,  are  no  part  of  the  oath, 
but  are  only  ceremonies  invented  to  add  the  greater 

(q)  Sec     !  <■    Pufendorf,  Jus  Nat.  et         O)  Selden's  Works,  by  Wilkin*,  In 
Gent.  lib.  4,  c.  2,  £  2.  six  volumes,  a.  \>.  1726. 


72  INTRODUCTIOX. 

solemnity  to  the  taking  of  it,  and  to  express  the  assent 
of  the  party  to  the  oath  when  he  does  not  repeat  the 
oath  itself;  but  the  swearing  in  all  of  them,  be  the  ex- 
ternal form  what  it  will,  is  calling  God  Almighty  to 
be  a  witness." 

58.  There  is  this  important  distinction  among 
oaths;  that  many,  besides  invoking  the  attestation  of  a 
Superior  Power,  place  in  the  mouth  of  the  swearer  a 
formula,  by  which  he  imprecates  divine  vengeance  on 
himself  if  his  testimony  be  untrue.  One  of  the  forms 
in  use  among  the  ancient  Romans  is  thus  described : 
"  Lapidcm  silicem  tenebant  juraturi  per  Jovem,  heec 
verba  dicentes,  '  Si  sciens  fallo,tum  me  Diespitcr  salva 
urbe  arceque  bonis  ejiciat,  ut  ego  hunc  lapidem  ;'"  (s) 
and  formerly  an  imprecation  formed  part  of  the  judi- 
cial oath  in  France.  (J)  Some  eminent  authorities  in 
our  own  law,  have  used  language  calculated  to  convey 
the  notion  that  oaths  are  necessarily  imprecatory.  Thus 
in  Queen  Caroline's  case,  {21)  Lord  Chief  Justice  Ab- 
bott, when  delivering  the  answer  of  the  judges  to  a 
question  put  by  the  House  of  Lords,  says,  "  Speaking 
for  myself,  not  meaning,  thereby,  to  pledge  the  other 
judges,  though  I  believe  their  sentiments  concur  with 
my  own,  I  conceive,  that,  if  a  witness  says  he  considers 
the  oath  as  binding  upon  his  conscience,  he  does,  in 
effect,  affirm,  that  in  taking  that  oath,  he  has  called  his 
God  to  witness  that  what  he  shall  say  will  be  the  truth, 
and  that  he  has  imprecated  the  divine  vengeance  upon 
his  head,  if  what  he  shall  afterwards  say  is  false."  In 
Rex  v.  White,  (x)  also,  the   court  said, "  An  oath  is  a 

(s)  Festus,   de   Verbor.    Signif.    lib.      also   I    Greenl.  Ev.    §  328,   note,    7th 
10,  voc.  "Lapidem;"  and  the  custom      ed. 

is    alluded    to    by    Cicero,    Epist.    ad  ,7)  Bonnier,  Traite  des   Preuves,  § 

Divers,  lib.  7,  epist.  t  ;  and    by  Aulus      352,  2nd  ed. 
Gellius,  Noct.  Attic,  lib    1,  c.  21.    See  (w)  2  Brod.  &  B.  285. 

(x)   1  Leact>    C.  L.  430. 


JUDICIAL     EVIDENCE.  73 

religious  asseveration,  by  which  a  person  renounces  the 
mercy,  and  imprecates  the  vengeance  of  Heaven,  if  he 
do  not  speak  the  truth."  Imprecation  is,  however,  no 
part  of  the  essence  of  an  oath ;  but  is  a  mere  adjunct, 
of  questionable  propriety,  as  calculated  to  divert  atten- 
tion from  the  true  meaning  of  the  ceremony,  and  fix  it 
on  some  external  observance.  "  An  oath,"  says  Pufen- 
dorf,  (y)  "is  a  religious  asseveration,  by  which  we  re- 
nounce the  divine  mercy,  or  invoke  the  divine  ven- 
geance upon  us,  unless  we  speak  the  truth.  That  this 
is  the  meaning  of  oaths,  is  apparent  from  the  forms  in 
which  they  are  usually  couched,  as,  for  instance,  '  So 
help  me  God,'  '  God  be  my  witness,'  '  God  be  my 
avenger,'  or  equivalent  expressions  which  amount  to 
nearly  the  same  thing.  For  when  we  call  to  witness 
a  superior  who  has  a  right  to  inflict  punishment  on  us, 
we  by  this  act  desire  of  him  to  avenge  perfidy;  and 
the  Being  who  knows  all  things  is  the  avenger  of 
crime  by  the  being  witness  to  it.  Now  the  loss  of  the 
favor  of  God  is  in  itself  an  extremely  severe  punish- 
ment." A  modern  canonist  defines  an  oath, — "  Affirm- 
atio  religiosa,  hoc  est,  advocatio  Divini  Numinis  in 
testem  ejus  rei.quae  promittitur  aut  asseritur;"  (c)  and 
the  Roman  law  truly  laid  down,  "  Juiisjiirandi  con- 
tempta  religio  satis  Deum  ultorem  habet."  (a) 

59.    The    utility  of  oaths    in    any   shape    lias   been 
strongly  questioned.  (JO)     The  good  man,  it.  is  some- 

(y)  I  »<■  Jur.  N              ■  nt.  lil>.  ,|.  c.  superior   puniendi    jus    habens    te 

2.     "I  .1    auti  in     jusjurandum  advoi  itur,  simul               em    perfi 

.iii.i-  miseri-  ultio  petitui  ;  el  qui  novil  omnia  ullor 

cord ■ -•     1                         nit     divinam  est,  quia    testis,     in    hoc    ipso   aul 

posnam  in  nos  depo                           n  gr.ivi                                              Deui 

dicamus.     Hunc  enim   juramentorum  propitius  mortalem  non  adjuvct." 

le  indicant  formulae,  D  vot.  Inst.  Canon,  lib.  3,  tit.  9 

quibus  ilia  concipi   tolent ;  puta,  tta  §23. 

me  Deus  adju      ,  D<  (a)  Cod.  lib.  4,  tit.  1, 1.  2. 

■it  vindex,  aut  his  tequipollentes ;  quae  (/•)  Benlh.    Jud.    Ev.     lie.     ?.,    ch. 

codem   fere  recidunt.     Ouamlu  enim  6. 


74  INTRODUCTION. 

times  said,  will  speak  the  truth  without  an  oath,  while 
the  bail  man  mocks  at  its  obligation.  To  this,  how- 
ever, the  following  answer  has  been  given :  (V) — "  It 
must  be  owned  great  numbers  will  certainly  speak 
truth  without  an  oath  ;  and  too  many  will  not  speak 
it  with  one.  But  the  generality  of  mankind  are  of  a 
middle  sort ;  neither  so  virtuous  as  to  be  safely 
trusted,  in  cases  of  importance,  on  their  bare  word ; 
nor  yet  so  abandoned,  as  to  violate  a  more  solemn  en- 
gagement. Accordingly  we  find  by  experience,  that 
many  will  boldly  say,  what  they  will  by  no  means  ad- 
venture to  swear:  and  the  difference  which  they  make 
between  those  two  things,  is  often  indeed  much 
greater  than  they  should ;  but  still  it  shows  the  need 
of  insisting  on  the  strongest  security.  When  once 
men  are  under  that  awful  tie,  and,  as  the  scripture 
phrase  is,  have  bound  their  souls  with  a  bond  (Numb, 
xxx.  2),  it  composes  their  passions,  counterbalances 
their  prejudices  and  interests,  makes  them  mindful  of 
what  they  promise,  and  careful  what  they  assert ;  puts' 
them  upon  exactness  in  every  circumstance :  and  cir- 
cumstances are  often  very  material  things.  Even  the 
good  might  be  too  negligent,  and  the  bad  would  fre- 
quently have  no  concern  at  all  about  their  words,  if  it 
were  not  for  the  solemnity  of  this  religious  act."  The 
chief  arguments  brought  against  oaths,  however,  are 
founded  on  their  abuses.  One  of  the  greatest  of  these 
is  the  investing  oaths  with  a  conclusive  effect — where 
the  law  announces  to  a  person  whose  life,  liberty,  or 
property  is  in  jeopardy,  that  in  order  to  save  it  he  has 
only  to  swear  to  a  certain  indicated  fact.  This  was 
precisely  the  case  of  the  wager  of  law  anciently  used 
in  England,  (d )  and  the  system  of  purgation   under 

(c)  Archbishop   Seeker,  as   cited    in  (d)  3  IJlackst.  Coram.  341. 

Ram  on  Facts,  211,  212 


JUDICIAL     EVIDENCE.  75 

the  canon  law.  (V)  So,  in  the  civil  law,  either  of  the 
litigant  parties  might  in  many  cases  tender  an  oath, 
called  the  "  decisoiy  oath,"  to  the  other  who  was  bound 
under  peril  of  losing  his  cause,  either  to  take  it,  in 
which  case  he  obtained  judgment  without  further 
trouble,  or  refer  it  back  to  his  adversary,  who  then  re- 
fused at  the  like  peril,  or  took  it  with  the  like  pros- 
pect of  advantage.  The  judge  also  (be  it  remembered 
there  was  no  jury)  had  a  discretionary  power  of  de- 
ciding doubtful  cases  by  means  of  another  oath,  called 
the  "  supplctory  oath,"  administered  by  him  to  cither 
of  the  parties.  (/")  With  reference  to  these,  one  of  the 
greatest  foreign  authorities,  who  to  the  learning  of  a 
jurist  added  the  practical  experience  of  a  judge,  ex- 
pressed himself  as  follows:  (^)  "  I  would  advise  the 
judges  to  be  rather  sparing  in  the  use  of  these  pre- 
cautions, which  occasion  many. perjuries.  A  man  of 
integrity  does  not  require  the  obligation  of  an  oath,  to 
prevent  his  demanding  what  is  not  due  to  him,  or  dis- 
puting the  payment  of  what  he  owes  ;  and  a  dishonest 
man  is  not  afraid  of  incurring  the  guilt  of  perjury.  In 
the  exercise  of  my  profession  for  more  than  forty 
years,  J  have  often  seen  the  oath  deferred  ;  and  I  have 
not  more  than  twice  known  a  party  restrained  by  t he 

(e)  Devot.  Inst.  Canon,  lib.  3,  tit.  g,  law,  abolished  by  3  &  4  Will.  4,  c.  42, 

§  26,  not.  3  ;  4  Blackst.  Comm.  368.  the   common  law   of    England,  as  is 

(j)  See  ''ii  ill'-  Bubjecl  "I  the  1  well  known,  always  rejected  tin-  de- 
oaths,  Dig.  lib.  12,  tit.  2 ;  Cod.  lib.  1,  cisory  ami  guppli  oaths  of  the 
tn.  1  ;  Domat,  I  1.1 .  <  1  it  1,  civilians.  In  France  the  decisoiy  oath 
Iiv.  3.  tit.  6,  sect.  '■ ;  1  l.v.  I'oili.  is  not  allowed  in  criminal  cases;  Bon- 
11  lig.  part  i,  ch.  3,  sect.  4  ;  Bonnier,  nier,  Traite'des  Preuves,  §  342.  2nd  ed., 
I  .'.'  78,2nd  who  lays,  §  <>■>,  thai  iis  use  in  such 
ed. ;  Calvin    Lexic.  Jurid.  voc.    "Ju-  <          n  ty    he  con  idered    .1,   having 

ramentum,"     el     "Jurisjur.     U  us;"  di  appeared  ai [modern 

Devol     Inst.  Canon.   lib.  3,  tit.  9,  §§  nations.     Both   in   France  and  b)  the 

23  ci      '|  1 lern    canon     law,    the    Buppletory 

(g)  1    Ev.  Poth   .'   831.     With   the  oath  is  confined  to  civil   coses.     Id.  Jj 

exception    of    tho  ■■    1     e      in  which  37S,  and    Devot.    In  t.  I  anon.  lib.  3, 

a  defendant  was  allowed    to  u    gi  1    his  title  g,  §  2(>. 


76  INTRODUCTION. 

sanctity  of  the  oath,  from  persisting  in  what  he  had 
before  asserted."  Another  great  abuse  of  oaths  is  their 
frequency.  Formerly  a  system  of  wholesale  swearing 
pervaded  every  part  of  the  administration  of  this  coun- 
try—-it  was  observed,  "a  pound  of  tea  cannot  travel 
regularly  from  the  ship  to  the  consumer,  without  cost- 
ing half  a  dozen  oaths  at  the  least  ;"(/z)  and  nothing 
was  more  common  than  for  persons  to  go  before  mag- 
istrates, and  take  voluntary  oaths  on  the  most  trivial 
occasions.  The  latter  are  now  prohibited  altogether; 
(z)  and  by  several  modern  statutes,  a  declaration  has 
been  substituted  for  an  oath  in  many  proceedings  of 
an  extrajudicial  nature.  (Je) 

60.  Another  security  for  the  truth  of  evidence, 
and  check  on  the  action  of  fraud  and  perjury,  consists 
in  the  establishment  by  law  of  prescribed  forms,  to  be 
observed  when  pre-appointed  evidence  is  employed. 
Of  these  the  principal  and  most  universal  is  that  de- 
rived from  the  use  of  writing.  The  superiority  in 
permanence,  and  in  many  respects  in  trustworthiness, 
of  written  over  verbal  proofs,  must  have  been  noticed 
from  the  earliest  times — "  vox  audita  pent ;  litera 
scripta  manet."  The  false  relations  of  what  never  took 
place ;  and,  even  in  the  case  of  real  transactions,  the 
decayed  memories,  the  imperfect  recollections  and 
wilful  misrepresentations  of  witnesses;  added  to  the 
certainty  of  the  extinction,  sooner  or  later,  of  the 
primary  source  of  evidence  by  their  death  ;  all  show 
the  wisdom  of  providing  some  better,  or  at  least  more 
lasting,  mode  of  proof  for  matters  which  are  suscepti- 
ble of  it,  and  are  in  themselves  of  sufficient  conse- 
quence to  overbalance  the  trouble  and  expense  of  its 
attainment.     "  La  force  des  prcuves  par    ecrit,"   says 

(A)  Paley's  Moral  and  Political  I'lii-  (/)   As  to  promissory  oaths,  see  31  & 

losophy,  bk.  3,  pt.  I,  ch.  16.  32  Vict.  c.  72. 

(0  5  &  6  Will.  4,  c.  62,  s.  13. 


JUDICIAL     EVIDENCE.  77 

Domat,  (7)  "consiste  en  ce  que  les  homines  sont  cori- 
venus  de  eonserver  par  lecriture,  le  souvenir  des 
choses  qui  se  sont  passees,  et  dont  ils  ont  voulu  faire 
subsister  la  memoire,  soit  pour  s'en  faire  des  regies,  ou 
pour  y  avoir  une  preuve  perpetuelle  de  la  verite  de  ce 
qu'on  ecrit.  Ainsi,  on  ecrit  les  Conventions,  pour 
eonserver  la  memoire  de  ce  qu'on  s'est  present  en  con- 
tractant,  et  pour  se  faire  une  loi  fixet  immuable  de 
ce  qui  a  etc  convenu.  Ainsi,  on  ecrit  les  Testamens, 
pour  faire  subsister  le  souvenir  de  ce  qua  ordonne 
celui  qui  avait  le  droit  de  disposer  de  ses  biens,  et  en 
faire  une  regie  a  son  heriticr  et  a  ses  legataires. 
Ainsi,  on  ecrit  les  Sentences,  les  Arrets,  les  Edits,  les 
Ordonnances,  et  tout  ce  qui  doit  tenir  lieu  de  titre  ou 
de  loi.  Ainsi,  on  ecrit  dans  les  Registres  publics  les 
Manages,  les  Baptemes,  les  actcs  qui  doivent  etre  in- 
sinues  ;  et  on  fait  d'autres  semblables  registres,  pour 
avoir  un  depot  public  et  pcrpctuel  de  la  verite  des 
actcs  qu'on  y  enregistre.  .  .  .  L'ecrit  conserve  in- 
variablement  ce  qu'on  y  confie,  et  il  exprime  l'inten 
tion  des  personnes  par  leur  propre  t£moignage."  In 
accordance  with  these  principles,  the  policy  of  the 
common  law  of  England  requires,  that  the  proceed- 
ings of  parliament  and  the  higher  courts  of  justice,  and 
some  othei  puhlic  matters  of  greal  weight  and  impor- 
i  ince,  shall  he  preserved  in  written  records;  and  that 
many  acts,  even  among  private  individuals,  musl  he 
done  by  deed  or  writing.  Thus,  the  sale  <>r  transfer 
of  a  ship,  or  of  any  share  therein,  mu  t  be  by  writing. 
(m)  So,  the  sale  or  assignment  of  a  copyright,  must 
he  by  writing.  (//)  '     So  a  lease  of  any  t<  nements  or 

(/)  Domat,  Lois  Civiles,  part  I,  liv.         (m)  17  '    1       ^5- 

3,  tit.  6,  sect.  2.     See  infra,  bk.  2,  pt.         (")  5  &  6  Vict,  i     J5  ;  3  ,'c  4  Will.  4. 
3,  ch.  I.  c.  15  ;  S  Ann.  c.  <). 

'  Morgan    mm    the    Law  ol    Literature,   vol.  i.,  chapter  on 
Contracts. 


-8  INTRO  nrcriON. 

hereditaments,  for  a  term  of  more  than  three  years 
must  be  by  a  deed,  (o)  So,  the  promise  of  a  debtor, 
to  pay  a  debt  barred  by  the  Statute  of  Limitations,  is 
void  unless  it  be  made  in  writing,  and  be  signed  by 
the  party  chargeable  thereon.  (/)  So,  by  the  cele- 
brated statute  29  Car.  2,  c.  3, — -commonly  called  "  The 
Statute  of  Frauds  and  Perjuries," — any  special  promise 
by  an  executor  or  administrator  to  answer  damages 
out  of  his  own  estate  ;  or  any  special  promise  by  one 
person  to  answer  for  the  debt,  default,  or  miscarriages 
of  another  ;  or  any  agreement  made  by  any  person 
upon  consideration  of  marriage  ;  or  any  contract  or 
sale  of  lands,  tenements,  or  hereditaments,  or  any  in- 
terest in  or  concerning  them  ;  or  any  agreement  that 
is  not  to  be  performed  within  the  space  of  one  year 
from  the  making  thereof;  must  be  proved  by  some 
memorandum  or  note  in  writing,  signed  by  the  party 
to  be  charged  therewith,  or  by  some  other  person 
thereunto  by  him  lawfully  authorized.  (<p)  And  by 
the  same  statute,  it  is  further  enacted,  (r)  that  "  no 
contract  for  the  sale  of  any  goods,  wares,  or  merchan- 
dises, for  the  price  of  ^10  sterling,  or  upwards,  shall 
be  allowed  to  be  good,  except  the  buyer  shall  accept 
part  of  the  goods  so  sold  and  actually  receive  the 
same,  or  give  something  in  earnest  to  bind  the  bar- 
gain or  in  part  of  payment,  or  that  some  note  or 
memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  con- 
tract, or  their  agents  thereunto  lawfully  authorized." 
In  many  cases  also  certain  forms  are  superadded  to 
writing.     Thus,  it  is  of  the  essence  of  a  deed  that  it  be 


(0)  8  &  ()  Vict.  c.   106,  s   3  ;  29  Car.  {q)  Sect.  4. 

2,  c.  3,  ss.  1,  2.  (r)  Sect.  16  (marked    17  in  the  ordi. 

(/)  9  Geo.  4,  c.  14,  s.  I.  nary  copies). 


JUDICIAL     EVIDENCE.  79 

sealed  and  delivered :  (s)  l  and  by  the  7  Will.  4  &  1 
Vict.  c.  26,  s.  9  (explained  by  15  &  16  Vict,  c,  24),  a 
will  must  be  in  writing,  and  executed  by  being  signed 
at  the  foot  or  end  thereof  by  the  testator,  or  by  some 
other  person  in  his  presence  and  by  his  direction  ;  and 
such  signature  must  be  made  or  acknowledged  by  the 
testator  in  the  presence  of  two  or  more  witnesses, 
present  at  the  same  time  ;  and  such  witnesses  must 
attest  and  subscribe  the  will  in  the  presence  of  the 
testator.  Nor  are  provisions,  such  as  these,  in  any 
way  peculiar  to  our  law  ;  for  the  Jews,  the  Romans, 
and  the  Anglo-Saxons  had,  and  most  modern  nations 
have  their  pre-appointed  evidence  ; — requiring  certain 
acts  to  be  done  by  writing  or  in  some  particular 
way.  (/) 

61.  As  a  general  rule,  when  the  law  prescribes 
forms  for  pre-appointed  evidence,  the  non-compliance 
with  them  is  fatal  to  the  transaction,  and  the  whole 
becomes  a  nullity.  "  Non  observata  forma  infertur 
adnullatio  actus."  (u)  "  Forma  legalis,  forma  essentia- 
lis."  (x)  "  Solemn itatcs  legis  sunt  observanda?."  (jy) 
Bentham  recommends  that  this  should  be  reversed, 
and  that  pointed  suspicion,  not  nullification,  should  be 
the  result ;  (z)  but  he  admits  that  nullification  is  just 
in  < '  rtain  cases,  (a)  It  is  impossible  to  deny  that  the 
principle  under  consideration  may  be,  and  often  has 
been,  extended   beyond   the   limits  alike  of  usefulness 

B         '     '     '"in.    305,    306;  holds  in  the  French  law.    See  Bonnier, 

Finch,  Com.  Laws,  24  a.  1        •    des  Preuves,  §    418,2nd   ed. ; 

(/ )  See  .i  variety  "i  instance!  col.  Domat,  part  t,  liv.  3,  lit.  6,  s.  2,  §  vi. 

I    in    Greenleaf'i    Law   "I    Evi-  (.r)  to  Co,  to 

Hence,  vol.  i.                note  (i),  7th   ed,  (  y)   |cnk.    Cent.    1,    Cas.    22,    and 

Anilfirthc  Freni  li  Law,  see  Bonnier,  Cent.  3,  Cas.  45, 

Traite    des     1  part    2,    liv.    2,  (z)    2     Ilenih.    Jud.     Ev.    467,    487, 

and  c<l.  518. 

(«)  5  Co.  iv.  a  ;  12  Co   7.    The  same  (a)  Id.  470. 

1  Morgan's  Addison  on  Contracts,  vol.  1,  24,  25. 


8o  INTRODUCTION. 

and  propriety ;  and  the  truth  and  good  sense  of  the 
entire  matter  seem  contained  in  the  following  observa- 
tions of  Sir  W.  D.  Evans:  (6)  "The  interest  of  so- 
ciety is  greatly  promoted,  by  establishing  authentic 
criteria  of  judicial  certainty,  so  far  as  this  object  can 
be  effectuated  without  materially  interfering  with  the 
claims  of  general  convenience.  Where  the  acts  which 
may  become  the  subject  of  examination  will  admit  of 
deliberate  preparation,  and  the  purposes  of  them 
evince  the  propriety  of  a  formal  memorial  of  their  oc- 
currence, more  especially  when  they  are  from  their 
nature  subject  to  error  and  misrepresentation,  it  is 
reasonable  to  expect  that  those  who  are  interested  in 
their  preservation,  should  provide  for  it  in  a  manner 
previously  regulated  and  established,  or  that,  in  case 
of  neglect,  their  particular  interest  should  be  deemed 
subordinate  to  the  great  purposes  of  general  certainty. 
But  it  is  also  certain  that  this  system  of  precaution 
may  be  carried  too  far,  by  the  exaction  of  formalities, 
cumbersome  and  inconvenient  to  the  general  inter- 
course of  civil  transactions;  the  special  application  of 
these  principles  must  be  chiefly  governed  by  muni- 
cipal regulations  ;  but,  as  a  general  observation,  it  is 
evident  that  the  great  excellence  of  any  particular  sys- 
tem must  consist  in  requiring  as  much  certainty  and 
regularity  as  is  consistent  with  general  convenience, 
and  in  admitting  as  much  latitude  to  private  conveni- 
ence, as  is  consistent  with  general  certainty  and  re- 
gularity. It  may  be  added,  that  for  these  purposes 
every  regulation  should  be  attended  with  the  most  in- 
disputable perspicuity  ;  and  that  the  established  forms 
should  be  cautiously  preserved  from  any  intricacy  or 
strictness  that  may  tend  to  perplex  and  embarrass  the 
subjects  which  they  were  designed  to  elucidate,  and  to 

(b)  2  Ev.  Poth.  412. 


J I  ^ DIC I  A  L     E I  VDEXCE.  8 1 

endanger  and  destroy  the  substance  which  they  were 
instituted  to  defend." 

62.  Another  plan,  resorted  to  by  the  laws  of  most 
nations  for  guarding  against  misdecisions,  consists  in 
the  repudiation  as  witnesses  of  persons  whose  testi- 
mony, either  from  personal  interest  in  the  matter  in 
dispute,  or  other  visible  cause,  seems  likely  to  prove 
untrustworthy.  This  is  the  recusatio  testis  of  the 
civilians,  as  distinguished  from  the  recusatio  judicis, 
or  challenge  of  the  judge,  and  in  our  law  is  called 
"  the  incompetency  of  witnesses."  Its  policy,  how- 
ever, has  been  seriously  doubteuV,  even  fiercely  attacked, 
in  modern  times  ;  and  much  has  been  said  and  written 
on  both  sides  of  the  question.  (V)  Perhaps  the  true 
view  of  this  matter  is  that  the  principle  of  repudiation 
should,  at  least  in  general,  be  confined  to  pre-ap- 
pointed  evidence.  There  is  a  great  difference  be- 
tween the  rejection  of  evidence,  and  the  rejection  of 
witnesses.  Evidence  may  fairly  be  rejected  when  it  is 
so  remote  that,  to  allow  tribunals  to  act  on  it,  would 
invest  them  with  dangerous  or  unconstitutional  power; 
or,  when,  being  derivative  instead  of  original,  its  very 
production  carries  the  impress  of  a  fraudulent  suppres- 
sion of  better  evidence  ;  or  when  its  disclosure  would 
be  against  public  policy.  But  the  testimony  of  casual 
witnes  es  to  a  fact,  i.  e.  of  persons  who  have  incident- 
ally witne  ed  it,  comes  under  none  of  these  heads. 
Such  witnesses  are  the  original  depositaries  of  the 
evidence;  and  in  mail)'  cases  the  exclusion  of  their 
t<  stimony,  would  be  to  exclude  all  attainable  evidence 
on  the  question  in  dispute,  and  to  offer,  by  impunity, 
a  premium  to  dishonesty,  fraud,  and  crime.1     II  it  be 

U)  -  th.  Jud,  I'.v.  vol.  i.  pp.3,      ieq.,  5th  ed. ;  Ph.  &   Am.  Ev,  43-45! 

i-t,  152;  ■■"].  ii.   pp,   ;,(!.   542,  543.      Bonnier,  Traitd  d       1  225 

and  bk.  <),  pt.  3  ;  Tayl.  Kv.  ^  1210  et      et  stq.,  275  ct  acq.,  2nd  ed. 

'Sec  Judge  Applet  on 's  valuable  work  on  the  "Principlei 


82  INTRODUCTIOX. 

said  that,  owing  to  personal  interest  in  the  matter  in 
question,  unsoundness  of  mind,  deficiency  of  religion, 
antecedent  misconduct,  &c,  their  evidence  is  likely  to 
prove  unsafe ;  the  answer  is,  that  any  line  drawn  on 
this  subject  must  necessarily  be  in  the  highest  degree 
arbitrary.  It  is  is  impossible  to  enumerate,  a  priori, 
the  causes  which  may  distort  or  bias  the  minds  of  men, 
to  mis-state  or  pervert  the  truth,  or  to  estimate  the 
weight  of  each  of  these  causes  in  each  individual  case 
or  with  each  particular  person.  But  it  is  very  different 
with  pre -appointed  evidence,  where  parties  have  the 
power  to  select  their  witnesses,  and  thus  make  the 
original  depositaries  of  the  evidence  to  their  acts. 
To  such  parties  the  law  may  fairly  say,  "You  shall 
for  this  purpose  select  persons  who  from  their  station, 
occupation,  or  habits,  are  likely  to  be  of  more  than 
ordinary  intelligence,  knowledge,  or  trustworthiness : 
if  you  do  not,  you  must  take  the  consequences."  All 
this  seems  a  natural  and  just  development  of  the  great 
principle — in  the  English  law  a  fundamental  one — 
that  requires  the  best  evidence  to  be  given,  and  is 
further  recommended  by  being  rarely  productive  of 
injury  or  inconvenience,  (d) 

63.  But  whatever  the  real  value  of  this  plan  for 
securing  the  trustworthiness  of  evidence,  its  abuses 
have  been  enormous.  In  the  civil  and  canon  laws,  the 
list  of  persons  liable  to  be  rejected  as  incompetent  to 
bear  testimony,  was  so  large  that,  if  the  rules  of  exclu- 
sion had  not  been  qualified  or  evaded,  it  is  difficult  to 
see  how,  even  with  the  interrogation  of  parties  and  the 
perilous  aid  of  the  decisory  and  suppletory  oaths,  jus- 

(d)  See  on  this  subject,  bk.  1,  pt.  I,  and  bk.  3,  pt.  2. 

of    Evidence;"    and  also  an  opinion   of  Judge  Appleton,  in 
State  v.  Cleaves,  59  Me.  299,  quoted  post,  this  chapter. 


JUDICIA  L     E  VIDENCE. 


33 


tice  could  have  been  administered  at  all.  (<?)  And 
these  very  qualifications  and  evasions  gave  rise  to  a 
still  greater  evil,  which  shall  be  noticed  presently.  (/") 
In  some  instances  entire  classes  were  rejected,  not 
from  any  distrust  of  their  veracity,  but  as  a  punish- 
ment for  offenses,  or  with  the  view  of  affixing  a  stigma 
on  religious  or  political  opinions.  The  strongest  il- 
lustration of  this  is  to  be  found  in  the  celebrated  con- 
stitution of  the  Greek  emperor:  by  which  Pagans, 
Manichseans,  and  members  of  some  other  sects,  were 
disqualified  from  giving  evidence  under  any  circum- 
stances ;  while  heretics  and  Jews  were  only  allowed  to 
do  so  in  causes  in  which  heretics  or  Jews  were  parties 
and,  except  in  some  peculiar  cases,  from  necessity, 
could  not  bear  testimony  against  orthodox  Christians. 
(g)     Similar  principles  prevailed   in  the  canon   law, 


(t-)  See   I  »i  j.  lil>.  22.  tit.  5  ;  Cod.  lib. 
4,   tit.   20;  Huberus,   Prael.   Jur.  Civ. 
lib.  22,  tit.   5  ;   Hi   nee.  ad    Pand.  par. 
'     1    ' -    :  :  Ot.    In-t.    ''anon. 

lil).  3.  tit.  9,  §§    13  et   seq,  5th 
I  >■  ■  1  .IX.  lib.  2,  til.  20.    Bon- 

225 
et  seq.,  hat   the    positive 

rejection  of  w  itn  re  in  the 

indent  I  tnd  that  the  1 

plicated  '1  in   Em 

was  chiefly  the   work   of  the   mid 

'  71- 
■■I.   lil..   i,  tit,  ;,  I.  21.     We 

subjoin     thi  e  : — 

hi  mill  i  jud 
litigi 

-  i  u  in 
sit,  utruninc 

|uid   in    I 

'.1111    (|ni 

111      '  I 


utraque  pars  orthodoxa  sit,  sive  altera. 
[ntei  se  autem  hseretici  >,  vel  Judaeis, 
ubi  litigandura  existimaverint,  con- 
cedimus  fcedus  permixtum,  et  dignos 
liligatoribus  etiam  testes  in  trod  ui 

pjtis  scilicet    his,  quos   vel    Mani- 
chaicus  furor  (cujus  Bor- 

boril  e     manifest  urn     est),    vel 

na  superstitio  detinet  :    Samaritis 
nihilominus,  el  qui  illis  in  miles 

,  Montnnistis,  el    ra  is,  et 

<  Iphitis ;  quibus  pro  reatu  i  similitudine 
omni  actus  inti  rdictu    e  1 

Sed    Ins   quidem,   id    e  I .    Manii 
I;  I  ion     Sa- 

il   Montani  1 1 .,  et     I 
,   •  i    <  '1  in:       nmne  mini, 

convi 
e  interdii  turn.     Alii 
tantummodo  judi<  inlia  < 
monia   contra    orthodo  1 

quo  lu 1    ■   1,   volumu 

inhibi    1,     '    eterum  teatamentaria 
in     1  1    qiue    iii    ulti 
1  Mint, 

iter  utilitatem    nei  •     arii  u  us,  eis 


S4  INTRODUCTION. 

(//)  which  also,  as  might  have  been  expected,  rejected 
the  evidence  of  excommunicated  persons,  at  least 
kV-hen  tendered  against  such  as  were  orthodox,  (z) 
Even  whole  races  and  nations  have  occasionally  been 
brought  within  the  pale  of  exclusion  ;  as  in  some  parts 
of  the  West  Indies,  (£)  and  some  of  the  United  States 
of  America,  (/)  where  the  evidence  of  a  negro  slave 
was  not  receivable  against  a  free  person  ;  and  in  India, 
where  that  of  a  Hindoo  seems  not  to  have  been  re- 
ceivable against  a  Mohammedan,  (m)  The  following 
law  of  the  State  of  Alabama,  passed  so  late  as  1852, 
carried  the  matter  much  further :  "  Negroes,  mulattoes, 
Indians,  and  all  persons  of  mixed  blood,  descended 
from  negro  or  Indian  ancestors,  to  the  third  genera- 
tion included,  though  one  ancestor  of  each  generation 
may  have  been  a  white  person,  whether  bond  or  free, 
cannot  be  a  witness  in  any  cause,  civil  or  criminal, 
except  foi  or  against  each  other."  («)  Although 
the  English  law  never  went  so  far  in  this  respect,  as 
those  of  most  other  countries,  yet  even  among  us  the 
number  of  grounds  of  incompetency  to  give  evidence 
was  formerly  very  considerable.  They  have  been 
much  reduced  in  modern  times,  by  the  decisions  of 
the  judges  and  the  interference  of  the  legislature.  (0) 
64.  One  of  the  strangest  and  most  absurd  applica- 
tions of  this  principle  was  the  rejecting,  or  at  least 
regarding  with  suspicion,  the  testimony  of  women  as 

sine  ulla  distinctione  permittimus,  ne  (/)  Applelon     on    Evidence,    App. 

probationum  facultas  angustetur."  271,  275,  276,  277,  278. 

(':)  Lancel.   Inst.  Jur.   Can.   lib.  3,  (m)  See  Arbuthnot's  Reports  of  the 

tit.  14.1  19;  Ayl.  Par.  Jur.  Can.  Angl.  Foujdarce   Udalut,  p.   I,  and   Preface, 

;  Devot.  Inst.  Canon,  lib.  3,  tit.  p.  xxiii. ;  Goodcvc,  Evid.  113. 

13.  (n)  Appleton,  Evid.,  A])]).  275,  276. 

(z)   Lancel.  in  loc.  cit.  (d)  On  the  subject  of  the  incompe- 

(k\  Browne's   Civil    Law,  vol.  i.  p.  tency  of  witnesses,   see  bk.   1,  pt.  2, 

107,  note,  2nd  ed.  ;   Shephard's  Colo-  and  bk.  2,  pt.  I,  ch.  2. 

nial  Practice  of  St.  Vincent,  69,  70. 


JUDICIA  L     E  VIDENCE. 


S5 


compared  with  that  of  men.  The  following  law  is  at- 
tributed to  Moses  by  Josephus:  "  Let  the  testimony 
of  women  not  be  received,  on  account  of  the  levity 
and  audacity  of  their  sex ;"  (/) — a  law  which  looks 
apocryphal,  (g)  but  which,  even  if  genuine,  could  not 
have  been  of  universal  application,  (V)  The  Hindu 
code,  it  a})} tears,  rejected  their  evidence  generally,  if 
not  absolutely;  (Y)  as  likewise  did  the  Mohammedan 
law,  in  charges  of  adultery,  and  in  some  other  in- 
stances. (7)  Nor  were  these  merely  Asiatic  views. 
The  law  of  ancient  Rome,  while  admitting  their  testi- 
mony in  genera',  refused  it  in  certain  cases.  («)  The 
civil  and  canon  laws  of  mediaeval  Europe  seemed  to 
have  carried  the  exclusion  much  further,  (x)  Mas- 
cardus    (y)   says,   "  Feminis  plerumque  omnino  non 


(/)  Joseph.  Antiq.  Judaic,  lib.  4,  c. 

1,  15.     Vvvcdnav  Si  //>/  f'6roo 

jtaprvpia  ,81a  HHcpo  rr/racMai  Ofjac- 

ytvui  avr<>w. 

((/)  Independent  of   the  inspiration 

of  the   Pentateuch,  and  its  significant 

silence  on  the  subject,  the  style  of  this 

law   is   widely  different  from  that  of 

Mo 

(/•;  There  is  at  least  ope  instance  in 

the    Pentateuch,   where   the  evidence 

of  a  woman  was  receivable,  and   this 

in  a  capital   case:   "If  a  man 

a  stubborn   and   rebelli 

which  will   n.(t  obey  the  voice  "I    his 

father,  or  the  f  his  mother,  and 

,  when   ili'  y  have  1  h  1  itened   him, 

will    not    heai  ken    unto   them :    then 

thai]  liis    in< ■! li'-r    lay 

hold  on  him.  and    bring    him  out   Unto 

the   eldi  rs  of  hi  ind    unto  the 

nf  hi,  place  ;  and  they  ha  I 
unto  the  elder-  of  his  city,  This  our 
ubborn  and  rebi  lliou -.,  he  will 
not  obey  our  voice;  he  i-  a  glutton 
an  1  a  drunkard.  And  all  the  men  of 
hi.  ritv  «*»<iU    v., iU.   him  with   st  1 


that  he  die ;  so  shalt  thou  put  evil 
away  from  among  you  ;  and  all  Israel 
shall  hear,  and  fear."  Deut.  xxi.  1S-21. 
Solomon,  also,  in  his  celebrated  judg- 
ment, 1  Kings,  iii.  16  et  seq.,  seems 
to  have  made  no  difficulty  about  re 
ceiving  the  statements  of  the  two 
■.'.  omen. 

(s)  See  Translation  of  Pootee,  ch. 
3,  s.  S,  in  Halhed's  Code  of  Gentoo 
Laws,  and  G         re,  Evid.  S7. 

(/ )  See  <  ribbon's  I  listory  of  the 
Decline  and  Fall  of  the  Roman  Em- 
pire, ch.  50  ;  I  [amilti  m's   Translation 

!  I     aya,    vol.    i,    p.    382  ;     Ma< 
naghten's    Moohummedan    Law,    77; 
Arbuthnot':      I  of    the 

I     -    1  I  'dalut.p.  3. 

'in   I  h'g,  lib.  22,  tit.  5,  1 

rd,  de   Prob    <  !on<  1-  76  | 

.  I  .mi .  1.  1 11  •    Jur,  Can   lib    \.  tit. 

14,   ;  '    11  and    1    .    Decret.   I  Iratian. 

■       1,   quoest.   5,  c.    17. 

also   I  leinec.  ad    Pand.  pai  -  4,  $ 

( j  ' ;  rd  ,;  Prob.  ConcL  703. 
N  N.  2.  3. 


86  INTRODUCTION. 

creditur,  ob  id  duntaxat,  quod  sunt  feminse,  quae  ut 
plurimum  solent  esse  fraudulentae,  fallaces,  et  dolosae;" 
ami  Lancelottus,  in  his  Institutiones  Juris  Ganonici, 
(,sr )  lavs  down  in  the  most  distinct  terms,  that  women 
cannot  in  general  be  witnesses,  citing  the  laneruaere  of 
Virgil,  "  Varium  et  miitabile  semper  femina,"  (#) — 
not  the  only  instance  in  which  poetry  has  been  in- 
voked, to  justify  maxims  and  laws  indefensible  by  rea- 
son. That  these  rules  were  plastic  enough,  like  the 
other  rules  of  those  systems,  so  as  to  admit  many  ex- 
ceptions, may  easily  be  conceived  ;  (Jj)  but  the  follow- 
ing extract  from  the  work  of  an  able  French  jurist  of 
our  time,  shows  how  long  the  principle  held  its  ground 
on  the  continent.  (V)  "  After  women  had  been  ad- 
mitted to  bear  testimony  by  an  ordinance  of  Charles 
VI."  (of  France)  "  of  the  15th  Nov.  1394,  it  was  long 
before  their  evidence  was  considered  equivalent  to 
that  of  a  man.  Bruncau,  although  a  contemporary  of 
Mde.  de  Sevigne,  did  not  scruple  to  write,  in  1686, 
that  the  deposition  of  three  women  was  only  equal  to 
that  of  two  men.  At  Berne,  so  late  as  1821  ;  in  the 
Canton  ofVaud,  so  late  as  1824,  the  testimony  of  two 
women  was  required  to  counterbalance  that  of  one 
man.  We  will  say  nothing  of  the  minor  distinctions 
with  which  the  system  was  complicated,  such,  for  in- 
stance, as  the  principle  that  a  virgin  was  entitled  to 
greater  credit  than  a  widow — magis  creditur  virgini 
quam  vidua?."  In  the  edition  of  the  Institutiones 
Canonical'  of  Devotus,  {d)  published  at  Paris  in  1852, 
it  is  distinctly  stated  that,  except  in  a  few  peculiar  in- 
stances, women  are  not  competent  witnesses  in  crim- 
inal cases.     In    Scotland  also,  until   the   beginning  of 

(2)  Lib.  3,  tit.  14,?^  14  and  15.  (c)  Bonnier,  Tiaite  ties   Preuves,  § 

(a)  /En.  4,  569,  570.  243,  2mJ  ed. 

(6)  See  Mascard.  in  loc.  cit.  (J)  Lib.  3,  tit.  9,  §  14. 


JUDICIAL     EVIDENCE.  87 

the  1 8th  century,  sex  was  a  cause  of  exclusion  from 
the  witness  box,  in  the  great  majority  of  instances,  (e) 
Even  our  old  English  lawyers  occasionally  rejected 
the  evidence  of  women,  on  the  ground  that  they  are 
frail.  (/)  Sir  Edward  Coke,  ( -f)  in  the  reign  of 
Charles  I.,  without  a  single  note  of  dissent  or  disap- 
probation, writes  thus  : — "  In  some  cases  women  are 
by  law  wholly  excluded  to  bear  testimony  ;  as  to 
prove  a  man  to  be  a  villain,  (Ji) — mulieres  ad  proba- 
tionem  status  hominis  admitti  non  debent."  It  seems 
also  that  in  very  early  times,  their  testimony  was  in- 
sufficient to  prove  issue  born  alive,  so  as  to  entitle  a 
man  to  be  a  tenant  by  the  courtesy  ;  (z)  neither  could 
they  prove  the  summons  of  jurors  in  an  assize.  (/•) 

65.  One  of  the  most  obvious  modes  of  guarding 
against  inisdecision,  consists  in  the  exacting  a  certain 
number  of  witnesses  or  other  media  of  proof.  The 
advantage  of  a  plurality  of  witnesses  consists  in  this, 
that  a  false  story  runs  great  risk  of  being  detected  by 
discrepancies  in  their  testimony,  especially  if  they  are 
questioned  skillfull)'  and  out  of  the  hearing  of  each 
Other.  (  /  )  But,  however  salutary  such  a  rule  may 
be,  in  countries  where  mendacity  and  perjury  are  so 
common  and  notorious  as  scarcely  to  be  looked 
upon  as  crimes,  (m)  and  everywhere  in  some  eases  of 

Hume,  Crim.  Law  of  Scotland,  Hai              Co.  I. in.   39  I), 

vol.  2,  pp,                1  .  Bui  n  1                      5. 

1  11m.          (k)  Co,  Int.  [58  l>. 

St.   '.  (/)  A  1  elebrated  applii  ation  of  this 

li.  Abr.  Villenage,  pi.  37;      principle  is  to  In-  round    in  th< 

Iir>>.  Abr    l  innah  and   the    F'ders,   in   the 

(g  1  Co.  I  nt.  w  1).  A| )  |'li  1. 


(//)  Ace.    Fitzh,   Abr,  Vill 
37;  Bro.    Abr.    Testmoignes,   pi.   30 
who  refi  in  the  1 3  Edw    I 


on  tlu-  ej  re  of  Yorl  1 1  ■ 

III.,  cited  l>y  Fitzh.  Villenage,  pi.  43 


in  his  oration  for  Fls 

ol    thi    Greel      in   this   n    | 


llri  1 1 <  >  r,  the  case      "  li  Bentham,  3 


Jud,  li''  re  have  bi  en    aid 

to   •  \i-i   .1  sort    of    hou  ■  'I    "' 


83  INTRODUCTION. 

a  serious  and  peculiar  nature,  it  is  certainly  not  based 
on  any  principle  of  general  jurisprudence,  and 
wherever  so  considered  has  brought  immense  evils  in 
'ts  train.  (//) 

66.  The  law  of  Moses  in  certain  criminal  cases, 
and  the  New  Testament  in  certain  ecclesiastical  mat- 
ters, required  two  witnesses  ;  whence  the  civilians  and 
canonists  (the  latter  at  least)  inferred  a  divine  com- 
mand, to  exact  that  number  in  all  cases,  both  civil  and 
criminal,  (o)  The  text  of  the  Imperial  Code  is  posi- 
tive :  "  M anifeste   sancimus,   ut    unius    omnino  testis 

* 

responsio  non  audiatur,  etiamsi  praeclaras  curice  honore 
praefulgeat :  (/>)  Sola  testatione  prolatem,  nee  aliis 
legitimis  adminiculis  causam  approbatam,  nullius  esse 
momenti  certum  est."  (</)  And  that  of  the  Decretals 
runs  thus :  (r)  "  Licet  quoedam  sint  causa?  qua?  plures 
quam  duos  exigant  testes,  nulla  est  tamen  causa,  quae 
unius  testimonio  (quamvis  legitimo)  terminctur." 
Sometimes  even  this  was  insufficient.  Five  witnesses 
were   required    by   the  imperial  law  to  prove  certain 

register-offices,  for  a  sort  of  witnesses  («)  See  infra,  §§  69  et  seq. 

of  all  work,  as  in  London  for  domestic  (0)  See  infra,  bk.  3,  pt.  2,  ch.  10. 

servants    and    workmen    in    different  {p)  Cod.  lib.  4,  tit.  20,  1.  9,  §  I. 

lines,  and    in   some   parts   of  Italy  for  (a)  Cod.  lib.  4,   tit.  20,  1.  4.     Bon- 

assasMns.     Ireland,  whether  in  jest  or  nier,  in  his  Traite  des  Preuves,  §  241, 

in  earnest,  was  at  one  time  noted   for  2nd    ed.,    has    an    able    argument,    to 

breeding  a  class  of  witnesses,  known  show  that  this  principle  was  not  estab- 

for  trading  ones,  by  a  symbol  of  their  lished    in    the    Roman    jurisprudence 

trade,   straws    sticking    out    of    their  until   the  time  of  ihc   Lower  Empire, 

shoes.     Under    the    Turkish    govern-  and  had  its  origin  in  the  constitution 

merit,  it   seems  generally   understood  of  the  Emperor  Constantine,  Cod.  lib. 

that  the  trade  of  testimony  exists  upon  4,   tit.   20,   1.  9,  £   1,  which  (Bonnier 

a  footing  at  least  as  flourishing  as  that  thinks)  convened  into  a  rule  of  law 

of  any  other  branch  of  trade."     The  what  had  previously  been  laid  down  as 

morals  of  mediaeval   Europe   are  well  a  matter  of  advice  and  caution.     See 

known   to  have  been  very  low  on  this  further    on     this     subject,     Iluberas, 

subject  ;    and    all    accounts    agree    in  Prael.    Jur.    Civ.    lib.   22,  tit.  3,  n.  2, 

describing   hardened    perjury  as   still  and  infra,  bk.  3,  pt.  2,  ch.  jo. 
rife  throughout  the  Ea.-,t.   As  to  India,  (;-)  Decretal.   Greg.    IX.    lib.  2,  tit. 

tee  Goodeve,  Evid.  238.  20,  c.  23. 


J  UDICIA  L     E  VIDENCE . 


89 


payments;  (s)  the  canon  law  occasionally  required  five, 
seven,  or  more  witnesses  to  make  full  proof ;  (7)  and  the 
number  made  necessary  on  criminal  charges,  brought 
against  persons  in  office  in  the  church,  is  almost  in- 
credible. («)  By  the  law  of  Mdriammed,  a  woman 
could  not  be  convicted  of  adultery  unless  on  the  testi- 
mony of  foui  male  witnesses ;  (x)  and  his  successor 
the  Caliph  Omar  decided,  with  reference  to  this  law, 
that  all  circumstantial  evidence,  however  proximate 
and  convincing,  was  of  no  avail,  and  that  the  four  male 
witnesses  must  have  witnessed  the  very  act  in  the 
strictest  sense  of  the  word,  (y) 

67.  But  since  evidence  may  be  circumstantial  as 
well  as  direct,  the  system  would  have  been  imperfect, 
had   not    the    number   of  circumstances  requisite  for 


(s)  Cod.  lib.  4.  tit.  20,  I.  18. 

(/)  Ayl.   Par.   Jur.  Can.  Ang]  444; 
enl.  Ev.  £  260,  a,  notes,  7th  ed.  ; 
Evans  v.  Evans,  I    Roberts,  Eccl.   R. 
171. 

hit  Fort*  ae,  m  his  Treatise  de 
Land  Leg.  Angl.  cap.  32  (written 
before  the  Reformation),  tells  us  of  a 
"lex  G  Concilii.  qua  cavctur, 

ut  non  nisi  duodei  im  testium  depo- 
sitione  cardinalles  rie  criminibus  con- 
vincantur."     Waterhouse,  in  his  Com- 
mentary 011   l  ,  p.  4"5.  saj 
is  not  aware   what   Council    is    here 
alluded  to,  nor  h  e  been  abl 
find  it  ;  hut   he   refers  to  the 
council  of  Rome,  under  Sylve  ter,  as 
given  ni                         f  Biniu     vol.  1, 
pp.  315  and  31  -,  the  third  <  hapti  1  ol 

will' 

daronabitui  pne  ul,  ni  1  in    epl  u  iginta 
duobus,    neque     pi  1   ul  fi 

quoquam     judii  iliitur,    quoniain 
icriptum     est :     Non     <■  t    disi  ipului 
^uj.i-i    in. 1   1  i :  um.      Pre  byter  auti  m, 

in  quadraginta  quatu  ia 

non    damnabitur.      Diaconus    autem 
cardine  constricts  urbis  Romae,  ni 


triginta  sex,  non  condemnabitur.  Sub- 
diaconus,  acolythus,  exorcista,  lector, 
nisi   (sicut    scriptum   est)   in    septem 

monia  filios  et  uxorum  habentes, 
omnino  Christum  prsedicantes,  sicut 
datur  mystica  Veritas."  In  the  laws  of 
Hen.  I.  c.  5,  also,  there  is  this  passage: 
"  Non  dampnetur  presul  nisi  in  lxxii. 
testibus ;  neque  presul  Minimus  a 
quoquam  judiceter.  Presbyter  car- 
dinalis  nisi  in  xliv.  testibus  non 
dampnabitur  ;  diaconus  cardinalis  nisi 
in  xxvi.  ;  subdiaconus  et  infra  nisi  in 
vii.  ;  nec  ma jor  in  minorum  impe- 
liiione  di  pi  reat."  In  the  I  .aw  Re- 
\  iew,  vol.  i.  p.  300,  and  vol.  iv.  |>.  133,  it 
thai  l>y  the  canon  law,  in 
the  case  ol   a   1  ardinal   1  '■   with 

incontinent  e,  the  plena  probal  io  must 
be  establi  ihed  l>y  no  le  s  than  seven 
. ;  bul  ii"  authoi  ity  isi  ited. 

See  also  1  I I.  Ev.  £  2G0.  a,  note 

1 1 1,  7th  1  d.,  and  I  levot.,  [nsl  1  anon, 
lib. 

I  <  libbou1  Hi  toi  v  ..I  the  I  >ei  line 
1  in. in    Empire,  ch. 

GOO  ,1    vid.   1  13. 

(  y)  <  .i1iIm.ii,  in  loc. 


90  INTRODUCTION. 

conviction  been  defined  with  the  same  logical  pre- 
cision. Three  presumptions  at  least  were  therefore 
considered  necessary  by  certain  doctors  of  the  civil 
law  ;  unless  they  were  extremely  strong,  in  which  case 
two  might  suffice;  (V)  and  the  Austrian  legislature,  by 
a  law  passed  so  late  as  1833,  but  now  abolished,  pro- 
hibited in  general  all  condemnation  from  circum- 
stances, unless  there  were  at  least  three.  The  climax 
of  absurdity,  however,  appears  in  the  code  which  until 
recently  existed  in  Bavaria.  Having  observed  that  in- 
culpative  circumstances  are  of  three  kinds,  viz.,  antece- 
dent to  the  act,  as  preparations,  threats,  &c. ;  concomi- 
tant, as,  in  case  of  homicide,  a  weapon  of  the  accused, 
found  near  the  dead  body  ;  and,  subsequent,  as  flight 
from  justice,  attempt  to  suborn  witnesses,  and  the 
like ;  the  Bavarian  legislature  ordained  that  some 
circumstances  belonging  to  each  class  must  be 
proved,  (a) 

68.  There  is  unquestionably  no  branch  of  jurispru- 
dence,whose  principles  have  been  so  much  abused  and 
pushed  beyond  their  legitimate  limits  as  judicial  proof, 
especially  with  regard  to  its  exclusionary  rules.  This 
arises  partly  from  its  having  been  comparatively  little 
understood  in  former  times — the  substantive  branches 
of  law  always  coming  to  perfection  before  the  adjec- 
tive ; — and  partly  from  artificial  rules  of  evidence  being 
found  an  excellent  shield  for  acts  which  it  is  not  de- 
sired to  suppress,  but  which  it  would  be  unsafe  or  scan- 
dalous to  realize.  In  such  cases  the  prohibiting  the 
act,  but  requiring  for  the  establishment  of  it  evidence 
so  peculiar,  either  in  quantity  or  quality,  as  to  render 
condemnation  practically  impossible,  is  the  ready  de- 

(z)  Bonnier,   Traite  des   Preuves,  §  laws  of  Austria  and  Havana  are  taken 

723.  2nd  ed.  from    Bonnier,  Traite-  des   Preuves.  §j: 

(a)   It    is  right   to   :i  •  hat  the  723  and  727,  2nd  ed. 

statement  here  made   rekw.ve   to  the 


JUDICIAL     EVIDENCE.  91 

vice  of  corrupt  legislation.  Some  abuses  of  judicial  evi- 
dence have  been  alluded  to  in  the  course  of  this  Intro- 
duction ;  and  we  purpose  to  conclude  it  by  pointing  at- 
tention to  two  ;  which,  owing  to  their  magnitude,  their 
prevalence,  and  the  danger  under  which  all  tribunals, 
especially  such  as  are  of  a  permanent  nature,  lie  from 
them,  deserve  particular  notice. 

69.  The  first  of  these  has  its  origin  in  a  natural  ten- 
dency of  the  human  mind  to  re-act  or  turn  round  on 
itself,  by  assuming  the  convertability  of  the  end  with 
the  means  used  to  attain  it.  As  connected  with  the 
subj<  ct  before  us,  this  displays  itself  in  the  creation  of 
a  system  of  technical,  and  as  it  were  mechanical  belief, 
dependent  on  the  presence  of  instruments  of  evidence 
in  some  given  number ;  and  which  has  with  great  truth 
and  power  been  designated  by  Bonnier,  in  his  Traite 
des  Preuves,  (6)  "  systeme  qui  tarifait  les  tcmoignages, 
au  lieu  de  les  soumcttre  a  la  conscience  du  juge."  It 
is  strongly  illustrated  by  the  practice  of  the  civil  and 
canon  laws  on  the  continent  of  Europe,  thus  ably  de- 
scribed by  the  eminent  French  lawyer  just  quoted:  (V) 
"  The  technical  rules  relative  t<>  testimonial  proofwhich 
were  devised,  or  at  leas!  developed,  by  the  doctors  of 
the  middle  ages,  are  of  two  kinds.  Some  tend  to  ex- 
act ab  olutely  certain  conditions,  in  order  thai  legal 
conviction  may  exist,  while  others  still  more  extrava- 
gant, tend  to  create  in  certain  cases  an  artificial  legal 
conviction  even  where  real  conviction  may  not  exist.' 
"  If,"  he  add-,  in  another  place,  (d)  "the  rule  rejecting 
the  te  timony  of  a  single  witness  was  not  perfectly  rea- 
sonable, another  principle,  danger  1  a  very  differ- 
ent way,  was  that  which,  creating   a  legal  conviction 

(/;|  :'  ;  •  '1  242,  211c]  ed.     s,  Benth.  Jud 

Ev.  470,  471. 
(d)  Bonnier,  Traite  des   I'reuvcs,  $ 


02  IXTR0DUCTI0N. 

altogether  artificial,  established  that  the  concurrent  de- 
positions of  two  unsuspected  witnesses,  must  neces- 
sarily induce  condemnation.  Here  the  application  of 
the  texts  of  the  Corpus  Juris  was  completely  mistaken  ; 
for  such  a  logical  error  was  never  professed  at  Rome,  or 
even  at  Constantinople."  But  it  was  exactly  suited  to 
the  scholastic  and  supersubtle  spirit  of  more  recent 
times.  The  texts  of  the  code  and  of  the  decretal  being 
peremptory,  that  the  testimony  of  one  witness  could 
not  be  acted  on  under  any  circumstances,  (e)  and  that 
two  were  sufficient  in  all  cases  where  no  greater  num- 
ber was  expressly  required  by  law ;  (f)  the  doctors  of 
the  civil  and  canon  laws  hastily  (they  perhaps  thought 
logically)  inferred,  that  the  deposition  of  two  witnesses 
who  were  omni  exceptione  majores,  amounted  to 
proof;  and  bestowed  on  it  the  name  of  full  proof — 
"plena  probatio  "  (^) — forgetting  that  proof  means 
persuasion  wrought  in  the  mind,  and  consequently 
must  depend,  not  on  the  number  of  instruments  of 
evidence  employed,  but  on  their  force,  credibility,  and 
concurrence.  Nor  was  this  all.  If  the  testimony  of 
two  witnesses  made  full  proof,  that  of  one  must  be  a 
half  proof,  which  they  called  "  semi-plena  probatio ;" 
(A)  and  this  arithmetical  mode  of  estimating  testi- 
mony being  once  established,  it  was  extended  by  anal- 
ogy to  presumptive  evidence,  so  that  the  subtilties  of 
"  proof'  and  "  semi-proof"  ran  through  the  entire 
judicial  system.     Thus  admissions  extracted  by  torture 

(e)  Cofi.  lib.  4,  tit.  20,  1.  9:    "  Unius  also     Heinec.     ad    Panel,     pars    4,    § 

omnino  testis  responsio  non  audiaiur,  143. 

etiarrw    praeclarae   curiae    honore   prse-  {g)  Heinec.  ad  Panel,  pars  4,  §§  118 

fulgeat."  and    143  ;    Mascard.   de    Prob.   quaest. 

(/)  Dig.  lib.  22,  tit.  5, 1.  12 :  "  Ubi  11;    Ayl.   Par.  Jur.   Can.   Angl.  448, 

numerus  testium  non  adjicitur,  etiam  544. 

duo  sufficiunt:  pluralis  enim  elocutio   ,       (A)  Mascard    in  loc.  cit.  ;  Ayl.  Par. 

duorum   numero    contenta    est."     See  Jur.  Can.  Angl.  444. 


JUDICIAL     EVIDENCE.  93 

(7)  entries  made  by  tradesmen  in  their  books  to  the 
prejudice  of  other  persons,  (k)  an  oath  to  the  truth  of 
his  demand  or  defense,  administered  by  the  judge  to 
the  plaintiff  or  defendant,  (/)  and  occasionally  even 
fame  or  rumor,  (;«)  were  recognized  as  semi-proofs ; 
two  such  usually  constituting  full  proof.  Some  of  the 
later  civilians,  feeling  the  absurdity  of  the  position,  that 
the  probative  force  of  evidence  is  necessarily  represented 
by  unity,  zero,  or  one  half,  introduced  a  sub-division 
of  semi-proof  into  semi-plena  major,  semi-plena,  and 
semi-plena  minor;  (n)  which,  in  all  probability,  only 
served  to  make  matters  worse,  by  rendering  the  system 
more  technical.  And  a  like  rule  was  sometimes  ap- 
plied t<>  the  credit  of  witnesses.  "The  parliament  of 
Toulouse,"  says  Bonnier,  (0)  quoting  another  French 
author,"  has  a  peculiar  mode  of  dealing  with  objections; 
it  sometimes  receives  them  according  to  their  different 
quality,  so  that  they  do  not  destroy  the  deposition  of 
the  witness  altogether,  but  leave  it  good  for  an  eighth, 
a  quarter,  a  half,  or  three-quarters;  and  a  deposition 
thus  reduced  in  value  requires  the  aid  of  another  to 
become  complete.  For  example,  if  on  the  depositions 
of  four  witnesses  objected  to,  two  are  reduced  to  a 
half,  that  makes  one  witness;  if  the  third  deposition  is 
reduced  to  a  fourth,  and  the  fourth  to  three-quarters, 

(1)  M.i  card,  de    Prob.  Concl.  1302.  j^ari'  i     Privati,     lib.     3,     £§    98   and 

See  inier,  Traitd  di  •  Preuves,  100. 

•in.,  2nd  >■<].  Bonnier,  Traite*  des   Preuves,  § 

(/)  Heinec.  ad  Pand.  ]        | .  S,  134;  243,  2nd   ed.     This   practice   <>f  tlic 
1  l    .  Poth.  719.  I 

(/)  1    I       r  th    .'.'   719,  829,  834;  alluded  to  in   Burnel  1,  Law  of 

Heinec.    ."I     Pand.    pars    3,    §§    28,  Scotland,  528.  It  is  worth)  ol  remark, 

29.  thai  the  sarm  prim  iple  w 

de  Pi  L  7S4i  ""''  I"  "'  'd  <  into  the  jurispi  u- 

75S  ;  Lancel.  Inst.  Jur.  Can.  lib.  3,  tit.  dence  ol  itry, 

14,  i;^  1  and   54;  Ayl.  Par.  Jur.  e.m.  which    borrowed    so   much    from    thi 
An^l.  444.  1  [aw.     See  Hume'    Orim    I 

(»)  Heinec.  ad  Pand.  pars  4,  §  118 ;  Scotland,  &c,  vol.  ii.  ch.  IC    pp.  293  el 

Kelemcn,     Instituliones    Juris    Hun-  seq.  ;  and  19  How.  St.  Tr.  75  (note). 


94  INTRODUCTION. 

that  makes  another  witness,  and  consequently  there  is 
a  sufficient  proof  by  witnesses,  although  all  have  been 
objected  to,  and  suffered  in  some  degree  from  the  ob- 
jections taken." 

70.  So  firmly  was  this  vicious  principle  worked 
into  the  law  of  France,  that,  in  the  great  legal  reform 
which  took  place  in  that  country  at  the  beginning  of 
the  present  century,  it  was  deemed  advisable  to  take 
effective  measures  for  its  extirpation.  With  this  view 
the  Code  Napoleon  (/)  ordained,  that  in  criminal 
cases  a  sort  of  general  instruction  should  be  read  to 
every  jury  by  their  foreman,  before  commencing  their 
deliberations,  and  should  also  be  affixed  in  large  let- 
ters in  the  room  whither  they  retire  to  deliberate ; 
part  of  which  is  as  follows  : — "  La  loi  ne  demande  pas 
compte  aux  jure*s  des  moyens  par  lesquels  ils  se  sont 
convaincus ;  elle  ne  leur  present  point  de  regies  des- 
quelles  ils  doivent  fairc  particulierement  defendre  la 
plenitude  et  la  suffisance  d'une  preuve  ;  elle  leur  pres- 
ent de  s'interroo;er  eux-memes  dans  le  silence  et  lc 
recueillemcnt,  et  de  chcrcher,  dans  la  sincerity  de  leur 
conscience,  quelle  impression  on  faite  sur  leur  raison 
les  preuves  rapportCes  contre  l'accuse\  et  les  moyens 
de  sa  defense.  La  loi  ne  leur  dit  point,  '  Vous 
tiendrez  pour  vrai  tout  fait  atteste  par  tel  ou  tel 
nombre  de  temoins ;'  elle  ne  leur  dit  pas  non  plus, 
'Vous  ne  regarderez  pas  comme  suffisamment  etablie 
toute  preuve  qui  ne  sera  pas  formee  de  tel  proces  v< 
bal,  de  telles  pieces,  de  tant  de  temoins  ou  de  tant 
d'indices  ;'  elle  ne  leur  fait  que  cette  seule  question, 
qui  ren  ferine  toute  la  mesure  de  leur  devoirs, 
'  Avez-vous  unc  intimc  conviction?'"  This  seems 
running  into  the  other  extreme — for  it  implies,  in  lan- 
guage at   least,  that   the   jury  are  not  confined  to  the 

(/)  Code  I'Insti  ictioti   Criminelle,  liv.  2,  tit.  2,  ch.  4,  sect.  1,  §  342. 


JUDICIA  L     E  FIDE  A  CE. 


95 


legal  evidence  adduced,  but  are  to  form  their  judg- 
ment  on  whatever  they  know  of  themselves,  or  have 
heard  elsewhere,  or  believe,  respecting  the  matter  be- 
fore them.  However  this  may  be,  the  French  civil 
code  containing  no  analogous  provision,  Bonnier  (in 
1843  ana"  l&52)  thought  it  necessary  to  consider 
whether  in  civil  cases  the  two  witnesses  are  still 
required,  or  the  "  intime  conviction "  is  dispensed 
with  ;  both  which  points  he  resolves  in  the  nega- 
tive. (  q). 

(q)  Bonnier,  Trade  ties  Preuves,  £§  the  face  of  it,  and  probably  enough  in 
201,  202,  and  2nd  ed.  i?  241,  242.  It  the  intention  of  the  framers,  the  object 
i->  !>ut  justice  to  many  of  the  eminent      of  this   institution  was   the  protection 


civilians,  who  in  later  times  com- 
mented on  the  Roman  law,  to  state 
that  they  were  perfectly  alive  to  the 
absurdity  of  this  theory  of  proof  and 
semi-proof.  See  Huherus,  Prael.  Jur. 
lib.  22,  tit.  3,  n.  2  ;  Heinec.  ad 
Pand.  pars    1  It  was  however 

00  firm!  n,  so 

that    no    resource    remained     but    to 
le    it  ;    and    the    working   of    the 
m  has  been  thus  ably  exposed  : — 
"  In  n    law,  two  witnesses 

are  |  ed  indi  pen  able.    In  the 

(the  higher  p  ast), 

what  i  ?     Torture.     By  fewer 

than    two  1  man  was   not    to 

0    death  :    but    by   a 
single  wil  ht  a',  all  tim< 

1 1I1.      If, 
then,  b(  ing   guilty,  he    had    it   in   his 

er  to  relati  and  circum  tanti 
guill  .    1  he  thought 

lit,  he   might,  at    the   price   of  f> 
suffering,  n  I  a  ■■  himself  from  pre 
torments.     But    if,  not   being   guilty, 
an. I   in  '  not  1  it   in 

his  1  uilty 

act,  he   had  it    not    in    1 

c,  he  w 
suffer  ■in  n^  or  not  pel  ishing, 

under   or    in  the    in- 

fliction, as  it   might    happen,      ' 


of  innocence.  The  protection  of  guilt, 
and  the  aggravation  of  the  pressure 
upon  innocence,  was  the  real  fruit  of 
it.  In  the  non-penal  branch,  the 
experienced  mischievousness  of  tl  e 
rule  forced  men  upon  another  shift,  of 
which,  if  the  mischievousness  be  not 
so  serious,  the  absurdity  is  more 
glaring.  I  mean  the  operation  of 
splitting  one  man  into  two  v 
Proposing  to  himself  to  make  a  cus- 
11  non-customer,  pay  for  what 
he  has  had,  or  not  had, — a  shopke 
makes,  in  his  own  books,  an  entry  of 
the  delivi  ry  of  ibe  goods  accordingly, 
and   by  this  entry  he  makes  himself 

i witness.     A  suit  is  then  instituted 

by  himself,  against  the  supposed  cus- 
tomer,  for  the  value  of  the  goods:  he 
now  tak'-.  an  oath  in  a  prescribed 
form,  swearing  to  the  justne  sol  the 
supposed  debt,  and  by  this  oath  he 
[j  into  a  econd  « itne  s, 
the  I  « hii  h    the    law 

requiri        By  the     ame  rule,  if  I 

1  the  r<  quisite  1  omplemenl  ol 
win..  ich  oaths  might  have 

ted  it :  if  four  witi 

n.     With  a  split! 
mill  of  such  power  at  his  command,  a 
in. in    need    never  be  at  .1  I  wit- 

's.    In  every  cause,  the   plaintiff, 


96  INTRODUCTION. 

71.  The  substitution  of  arithmetic  for  observation 
and  reasoning,  when  estimating  the  value  of  evidence, 
is  not   confined   to  past  ages.     Bentham,   in  his  work 
on  Judicial    Evidence,  proposes  a  plan  so  extraordi- 
nary that  it  is  but  justice  to  give  it  in  his  own  words. 
After  observing   that   a   correct  mode  of  expressing 
degrees  of  persuasion  and  probative  force  is  an  object 
of  great   importance,    but  that  the  language   current 
among  the    body   of  the  people  is  in  this  particular 
most  deplorably  defective,  &c.,  (V)  he  proceeds  thus  (s) 
— "  Conceive    the     possible     degrees    of    persuasion, 
positive  and   negative  together,  to  be  thus  expressed  : 
the  degrees  of  positive  persuasion — persuasion  affirm- 
ing the  existence  of  the  fact  in  question — constitute 
one   part  of  the   scale,  which   call    the  positive   part 
The  degrees  of  negative  persuasion — persuasion  dis- 
affirming or  denying  the  existence  of  the   same  fact — 
constitute  the  other  part  of  the  scale,  which  call  the 
negative   part.     Each  part  is  divided  into  the   same 
number   of  degrees,   suppose   ten,    for   ordinary   use. 
Should  the  occasion  present  a  demand  for  any  ulterior 
degree   of  accuracy,  any   degree  that  can  be  required 
may  be  produced  at  pleasure,  here,  as  in  other  ordinary 
applications  of  arithmetic,  by  multiplying  this  ordin- 
ary number  of  degrees  in  both  parts  by  any  number, 

to  gain  it,  must  make  full  proof  (pro-  extracted,  of  a    disinterested   witness, 

batio  plena).     The  tradesman's  books  of     the    most    illustrious    and    conse 

make  half  a  full  proof  (probatio  semi-  quently  trustworthy  class,  goes  abso- 

plena) :   his  oath,  as  above  (his  supple-  lately    for    nothing"   (5    Benth.    Jud. 

tuiy  onth,  it  is  called),  makes  the  other  Ev.  481-483).    That  this  statement  of 

half  (Heinec.  iv.  134).     Sixteen    para-  the  practice  of  the  civilians  does  not 

graphs    before,   in    the    book    of    au-  rest  on   the  unsupported    authority  of 

thority,  from  which,  for  reference  sake,  Heineccius,  see   the   authorities   cited 

the  instance  has  been  taken,  the  reader  in  the   notes   to  the   present  and   pre 

has    been    assured   (and    that  without  ceding  articles. 
exception,    and    in    the    most   pointed  (r)  lienth.  Jud.  Ev.  vol.  i.  p.  74. 

terms),  that   a   half  full    pi  oof,  though  (s)  Id.  75-80. 

composed  of  the  testimony    regularly 


JUDICIAL     EVIDENCE.  97 

so  it  be  the  same  in  both   cases  ;  the  number  ten  will 
be   found    the    most    convenient  multiplier.     In  this 
case,  instead   of  10,  the   number  of   degrees  on  each 
scale  will  be  100  or  iooo,  and  so  on.      At  the  bottom 
of  eacb    part   of  the    scale  stands  o ;  by  which  is  de- 
noted the  non-existence  of  any  degree  of  persuasion 
on  either  side  ;  the  state  which  the  mind  is  in,  in  the 
case  in  which  the  affirmative  and  the  negative,  the  ex- 
istence and  the  non-existence  of  the  fact  in  question, 
present  themselves  to  it,  as  being  exactly  as  probable 
the  one  as  the  other.     Such  is  the  simplicity  of  this 
mode  of  expression,  that  no  material  image  represen- 
tative of  a  scale  seems  necessary  to  the  employment 
of  it.     The  scale  being  understood  to  be  composed  of 
ten  degrees — in  the  language  applied  by  the  French 
natural    philosophers    to    thermometers,  a    decigrade 
scale — a   man    says,  my  persuasion  is  at   10  or  9,  &c., 
affirmative,  or  at  10  or  9, cSlc., negative,  as,  in  speaking  of 
temperature,  as  indicated  by  a  thermometer  on  the  prin- 
ciple of  Fahrenheit,  a  man  says,  the  mercury  stood  at  10 
above,  or  at  10  below,  o.     If  ulterior  accuracy  be  re- 
eled as  worth  pursuing,  to  the  decigrade  substitute 
(  giving  notice)  a  centigrade  scale;  and  if  that  be  not  yet 
sufficient,  a  milligrade.     .    .    .     For  want  of  an  ade- 
quate mode  of  expression,  the  real  force  of  testimony 
in  a  cause  has  hitherto  been  exposed  to  perpetual  mis- 
representations.   .    '.    .    Old  measures  of  every  kind 
i<  ceive  additional  correctness  ;  new  ones  are  added  to 
the    number;  the  electrometer,  the    calorimeter,   the 
photometer,  the  eudiometer,  not    to  mention  so  many 
others, are   all    of  them  so   many  productions  oi  this 
age.     I  [as  not  jusl  ice  its  u  e  as  well  as  gas  ?" 

72.  The  most  singular  circumstance  connected 
with  this  fantastic  suggestion  is, its  being  accompanied 
by  an  admission  thai   after  all  the  only  true  seal   i^an 


98  INTRODUCTION. 

infinite  one,  but  that  that  is  unfortunately  inapplicable. 
(t)  The  fallacy  of  the  whole  has  been  thus  ably  ex- 
posed in  a  note  by  Dumont,  the  French  translator  of 
Bentham.  (ji)  "  I  do  not  dispute  the  correctness  of 
the  author's  principles;  and  I  cannot  deny  that,  where 
different  witnesses  have  different  degrees  of  belief,  it 
would  be  extremely  desirable  to  obtain  a  precise 
knowledge  of  these  degrees,  and  to  make  it  the  basis 
of  the  judicial  decision ;  but  I  cannot  believe  that  this 
sort  of  perfection  is  attainable  in  practice.  I  even 
think,  that  it  belongs  only  to  intelligences  superior  to 
ourselves,  or  at  least  to  the  great  mass  of  mankind. 
Looking  into  myself,  and  supposing  that  I  am  ex- 
amined in  a  court  of  justice  on  various  facts,  if  I  can- 
not answer  '  yes '  or  '  no '  with  all  the  certainty  which 
my  mind  can  allow,  if  there  be  degrees  and  shades,  I 
feel  myself  incapable  of  distinguishing  between  two 
and  three,  between  four  and  five,  and  even  between 
more  distant  degrees.  I  make  the  experiment  at  this 
very  moment ;  I  try  to  recollect  who  told  me  a  certain 
fact :  I  hesitate,  I  collect  all  the  circumstances,  I  think 
it  was  A.  rather  than  B. :  but  should  I  place  my  belief 
at  No.  4,  or  No.  7  ?  I  cannot  tell.  A  witness  who 
says, '  I  am  doubtful,'  says  nothing  at  all,  in  so  far  as 
the  judge  is  concerned.  It  serves  no  purpose,  I  think, 
to  inquire  after  the  degrees  of  doubt,  (x)  But  these 
different  states  of  belief,  which,  in  my  opinion,  it  is 
difficult  to  express  in  numbers,  display  themselves  to 

(/)  1   Benih.   Jud.    Ev.    74,  75,  and  nier,   Traite  des  Preuves,  §  244,2nd 

loo  ed.,    who     calls     it     a    "  testimonio- 

(«)  We  have   taken   this  on  the  au-  metre,"  and  rather  fancifully  observes, 

thority   of    the    Editor    of    Bentham's  "  Soumise    au    scalpel    de    l'analyse, 

Tud.   Ev.  vol.  i.  pp.  106-S,   A.D.  1827.  l'intime  conviction  se  fletrit ;  de  meme 

Continental  writers,  admirers  of  Ben-  que   les   fleurs  d'un  lierbier  se  desse- 

! ham's  works  in  general,  condemn  his  client  et  perdent  leursvives  couleurs." 
thermometer  of  persuasion.      Besides  (x)  Ace.   Domat,  pt.   I,  liv.  3,  tit.  & 

the  above  note  of  Bumont,  see    Bon-  sect.  3,  §  xiv. 


JUDICIAL     EVIDENCE.  99 

the  eyes  of  the  judge  by  other  signs.  The  readiness 
of  the  witness,  the  distinctness  and  certainty  of  his  an- 
swers, the  agreement  of  all  the  circumstances  of  his 
story  with  each  other — it  is  this  which  shows  the  con- 
fidence of  the  witmess  in  himself.  Hesitation,  a  pain- 
ful searching  for  the  details,  successive  connections  of 
his  own  testimony — it  is  this  which  announces  a  wit- 
ness who  is  not  at  the  maximum  of  certainty.  It  be- 
longs to  the  judge  to  appreciate  these  differences, 
rather  than  to  the  witness  himself,  who  would  be 
greatly  embarrassed  if  he  had  to  fix  the  numerical 
amount  of  his  own  belief.  Were  this  scale  adopted,  I 
should  be  apprehensive  that  the  authority  of  the  testi- 
mony would  often  be  inversely  as  the  wisdom  of  the  wit- 
nesses. Reserved  men — men  who  knew  what  doubt 
is — would,  in  many  cases,  place  themselves  at  inferior 
degrees,  rather  than  at  the  highest ;  while  those  of  a 
positive  and  presumptuous  disposition,  above  all,  pas- 
sionate men,  would  almost  believe  they  were  doing 
themselves  an  injury,  if  they  did  not  take  their  station 
immediately  at  the  highest  point.  The  wisest  thus 
leaning  to  a  diminution,  and  the  least  wise  to  an  aug- 
mentation, of  their  respective  influence  on  the  judge, 
the  scale  might  produce  an  effect  contrary  to  what 
the  author  expects  from  it.  .  .  .  It  appears  to  me, 
that,  in  judicial  matters,  the  true  security  depends  on 
the  degree  in  which  the  judges  are  acquainted  with 
the  nature  of  evidence,  the  appreciation  of  testimony, 
and  the  different  degrees  of  proving  power.  These 
principles  put  a  balance  into  their  hands,  in  which 
witnesses  can  be  weighed  much  more  accurately  than 
if  they  were  allowed  to  assign  their  own  value;  and 
«  ven  if  t  h<-  Male  of  t  he  degrees  of  belief  were  adopted, 
it  would  still  be  necessary  to  leave  judges  the  power 
of  appreciating  the    intelligence   and   morality  erf  the 


too  INTRODUCTION. 

witnesses,  in  order  to  estimate  the  confidence  due  to 
the  numerical  point  of  belief  at  which  they  have 
placed  their  testimony." 

73.  The  mathematical  calculus  of  probabilities,  or 
"doctrine  of  chances,"  has,  as  is  well  known,  been 
found  of  essential  service  in  various  political  and  so- 
cial matters,  apparently  unconnected  with  the  exact 
sciences.  The  modern  svstem  of  life  insurance,  in 
particular,  almost  owes  its  existence  to  that  branch  of 
mathemathics.  Among1  other  things,  the  notion  pre- 
sented itself  of  applying  the  calculus  of  probabilities 
to  estimating  the  value  of  testimony  given  in  courts 
of  justice  (j/) — an  object  sought  to  be  accomplished 
by  adapting  the  established  formulae,  which  express 
the  probability  of  the  concurrence  of  independent 
events,  to  the  probability  of  the  evidence  of  concurring 
witnesses  or  independent  facts.  But  no  real  analogy 
exists  in  this  respect  between  judicial  testimony  and 
life  insurance,  or  other  matters  of  a  similar  nature.  In 
the  latter  a  series  of  facts  and  figures,  collected  by 
long  and  accurate  observation,  and  carefully  registered, 
supply  data  that  bring  the  subject  within  the  range  of 
mathematical  analysis,  a  condition  which  wholly  fails 
when  we  attempt  to  deal  practically  with  the  former,  (z) 

(y)  Laplace,    Essai     Philosophique  m+n  be  the  total  number  of  possible 

sur  les  Probabilites,  5  th  ed. ;  Lacroix,  cases,  all  equally  likely ;  m  represents 

Calcul.dcs  Probabilites   Paris,    1833;  the  number  of  cases  in  favor  of  event 

Poisson,  Recherches  sur  la  Probability  A.,  and  //  those  of  event  I!.  ;  the  prob- 

des   Tugemens  en   malic-re  civile  et  en        .....       r  .        ...  .         m  . 

.*    &  ability  of  event  A.  will  be  ,  and 

matiere   crimmelle,   &c.      Paris,  1837;  '  m+n 

and   the   article  "Probability"  in  the      that  of  B.  — — .      It    is    also    evident 

m  +  n 
Pin  yclopcedia  Piitannica.  ,  ...  ,     ,       ,. 

,  '       '  ...  that    unity    is    the    symbol    of    certi- 

(z)    I  he    fundamental    principle    on  ,        ,        .       ,  ..  r      , 

,  .  '  '  t'lde  ;  for,   by  hypothesis,  one   of    the 

•which    the    calculus    of    probabilities  .  ..... 

events  must  happen  ;   and  adding  the 
rests  is.  that  in  order  to  determine  the  ,    ,.,.,.  ,    ,  ,    T.  , 

probabilities    of   A.   and    15.,  we    have 
probability  of  an  event,  we  must  take      „ 

the  ratio  of  the  favorable  chances  or  mT~tTl-  1  he  probability  of  the  cm- 
cases,  to  all  the  possible  cases  which  currence  of  independent  events  is,  not 
in   our    judgment    may    occur.      Let      the  sum  of  iheir  simple  probabilities, 


JUDICIAL     EVIDENCE. 


101 


Still  even  here  the  calculus  of  probabilities  is  not 
without  its  use.  "  La  plupart  de  nos  jugemens,"  says 
one  of  the  most  distinguished  writers  upon  it,  (a) 
"  ctant  fondes  sur  la  probability  des  temoignages,  il  est 
bien  important  de  la  soumettre  au  calcul.     La  chose, 

about  the  same  thing,  the  terms  mri 

and  m'n  belong  to  impossible  cases, 

and    the    above    expression    becomes 

By    a   similar   process    we 


but  their  compound  ratio  i.  e.  the  pro- 
duct of  the  probabilities  of  each  con- 
sidered separately.  Thus,  if  ^-^  be 
the  probability  of  event  A.,  m,  +  n,  tnat 
of  B.,  -  T    .-  that  of  C,  &c  ,  the  prob- 

m    ^n 

ability  of  their  concurrence  will  be 
expressed  bv  tliis  formula — 

(to)  (to)  (TO-)  fc 
When  the  total  number  of  possible 
case-,  and  their  ratio  to  the  number 
of  favorable  chances,  are  unknown, 
still  approximate  values  of  the  prob- 
abilities of  events  can  be  obtained,  by 
having  recourse  to  hypotheses  framed 
according  to  the  results  of  a  previous 
number  of  trials  or  o  I  events. 

The   calculus   of    probabilities   has 
been  applied  to  the  subject  of  human 
imony,  by  supposing  that,  in  a  cer- 
tain number  of  depositions,  say  m+n, 
a  witness  ha  i  uth   in  m  i 

and  falsehood  in  »  cases;  although,  in 
order  to  determine  with  •"  curacy  the 
probability  of  tl  to  which   he 

.  the  intrinsic,  or  a  priori  prob- 
ability of  tli.it  fa.  t  it 
into  the  account,  Let  th<  re  I"-  two 
e  e  .  A.  and  B,  ;  and  suppose 
that  in  m  cases  A.  h.i  spoken  truth, 
ami   in    >t   i  ehood ,  the 

imlicr-  in  th<  '■   I ; 

in'  and  «';  the  probability  oi  the  truth 

of  th  mony  of    \.     ■  -  •  -'  and 

that   of    B.      ',"    ,  •  d   is 

m'  +  n' 

not  known   whether   they  are  di 
ing    to    I         same    thing    or    not,    the 
probability    that    both    are    right     is 
— ""_ — -•    but  when   they  agree 


turn' 


mm'  +  mi' 

shall    find,  that    the    probability    that 

the  falsehood  of  their  joint  testimony 

is  — .      The  same  principle  can 

turn'  +  an' 

easily  be  extended  to  any  number  of 
witnesses,  /,  so  that  supposing  the 
probability  of  the  veracity  of  each  to 
be  the  same,  we  shall  have  m=m ', 
n=n  ,  &c,  and    the    expressions    last 

obtained    will     become    ■         '-     and 

— — — .     If   instead  of  witnesses   we 
mv  +  n\> 

have  circumstances,  the  probability  of 

any  fact,  as,  for  instance,  the  guilt  01 

innocence    of   an    accused    person,    is 

calculated    in    the   same  way,  treating 

each  circumstance  as  a  testimony,  and 

will   be    the   compound    result   of  the 

simple  probabilities  arising  from  each 

,,t    those   circumstances;    though    in 

estimating  strictly  the  probability  of 

guilt  resulting  from  each  circumstani  e, 

the  probability  of  the  truth  or  false 

hood  ol  ili'-  wiiiie,  is  depo  ing  to  that 

must    be   taken   into  the 

int. 

I   ,.    the    dedui  tion    of   the   above 
formulae,  see   the  works  cited   in   the 
note.      'I  he    mo  A    i  ursory    in- 
i     these    expr<     ions    will 
x  how  impossible  it  would   bi 
the   practical   pi  "I"  justice   to 

assign  even  appt  "  value*  to  the 

quantities   m,  m\   n   and    »■•  .  to    say 
nothing    of    the    oth<  i     probabilitiea 
necessary  to  be  comp  I  ted 
(a)  La  Place,  ut  su/ra,  p.  1 37- 


102  INTRODUCTION. 

il  est  vrai,  devicnt  souvcnt  impossible,  par  la  difficulty 
d'apprdcier  la  vdracite'  des  tdmoins,  ct  par  le  grand 
nombre  de  circonstances  dont  les  faits  qu'ils  attestent, 
sont  accompagnds.  Mais  on  peut,  dans  plusieurs  cas, 
resoudre  de  problemes  qui  ont  beaucoup  d'analogie 
avec  les  questions  qu'on  se  propose,  et  dont  les  solu- 
tions peuvent  dtre  regarddes  comme  des  approxima- 
tions propres  a  nous  guider,  et  a  nous  garantir  des 
erreurs  et  des  dangers  auxquels  de  mauvais  raisonne- 
mens  nous  exposent.  Une  approximation  de  ce  genre, 
lorsqu'elle  est  bien  conduite,  est  toujours  preferable 
aux  raisonnemens  les  plus  specieux."  The  calculus 
of  probabilities  has  accordingly  been  applied,  in 
English  treatises  on  evidence,  to  hypothetical  states 
of  facts,  to  illustrate  the  value  of  different  kinds  of 
evidence,  (b) 

74.  The  remaining  abuse,  if  less  monstrous  than 
the  other,  (V)  is  to  the  full  as  formidable  ;  and  is  sure 
to  be  found  wherever  the  rules  of  evidence  are  too 
technical  or  artificial,  and  the  decision  of  questions  of 
fact  is  entrusted  to  a  judge,  instead  of  a  jury  or  other 
casual  tribunal.  Although  no  tribunal  could  venture 
systematically  to  disregard  a  rule  of  evidence,  however 
absurd  or  mischievous — this  would  be  setting  aside 
the  law — tribunals  may  occasionally  suspend  the  oper- 
ation of  such  a  rule  without  risk,  and  even  with  ap- 
plause, when  its  enforcement  would  shock  common 
sense  ;  and  the  upright  man  who  has  the  misfortune 
to  be  judge  under  such  a  system,  either  relaxes  the 
rule  in  those  cases,  or  carries  it  out  at  all  hazards  under 
all  circumstances.  The  unjust  judge,  on  the  contrary, 
converts  this  very  strictness  of  the  law  into  an  engine 
of  despotism,  by   which   he  is  enabled  to  administer 

(6)  See  1  Stark.  Evid.  568,  3rd  ed. ;  (r)  Vide  supra,  §  69  et  seq. 

and  infra,  bk.  3,  pt    2,  ch.  2 


JUDICIAL     EVIDENCE.  103 

expletive  or  attribute  justice  at  pleasure;  while  the 
world  at  large  see  nothing  but  the  exoteric  system, 
little  suspecting  that  there  is  in  the  back  ground  an 
esoteric  system  with  which  only  the  initiated  are  ac- 
quainted. When  a  rule  of  this  kind  militates  against 
an  obnoxious  party,  the  judge  declares  that  he  is  bound 
to  administer  the  law  as  he  finds  it ;  that  it  is  not  for 
him  to  overturn  the  decisions  of  his  predecessors,  or 
sit  in  judgment  on  the  wisdom  of  the  legislature  :  and 
to  blame  him  for  this  is  impossible.  But  when  the 
party  against  whom  the  rule  presses  is  a  favored  one — 
the  judge  discovers  that  laws  were  made  for  the  bene- 
fit of  men,  not  their  ruin,  that  technical  objections 
argue  an  unworthy  cause,  and  that  the  first  duty  of 
every  tribunal  is  to  administer  substantial  justice  at 
any  price.  The  badness  of  the  rule  is  so  evident,  that 
it  is  difficult  to  find  fault  with  this  either;  and  by  thus 
shifting  the  urn  from  which  the  principle  of  his  deci- 
sion is  taken,  the  judge  sits,  like  the  fabled  Jove,  (d) 
the  absolute  arbiter  of  almost  every  case  that  comes 
before  him.  (e) 

75.  We  have  thus  endeavored  to  explain  the  prin- 
ciples on  which  judicial  evidence  is  founded,  to  dem- 
onstrate its  utility  and  necessity,  and  point  out  the 

(</)  doiol  yii(>   re   ni'xn  naranei-  Blessings  to  these,  to  those  distribute 

arat  Iv  Aioi    ovdei  ills,  &c. 

d(J>(>Mi',  ota  8i8ao<St,  hochojv  (f)   This    is   what    Bentham    calls 

erepoi  6i}  idooy  "The    Double   Fountain    Principle" 

*fL    fily    xaii/ii":<>;    SopTf    Zf.vS  ([ml.    Ev.   \>k.   8,   ch.   23).     Hut    how 

rtpitixipavvoi,  strange  he  could  nol  see  that  iti  most 

"AXXorf  ftiv  tf.  ;<-«x(.7  oyt  mi-  fatal    enemy  is   a   jury;    and    that    it 

percci,  aWore  5*  edOXaOf  &c  must   reign   supreme  under  his  own 

IX.  £1.  527.  judicial  lystem,  where  questions  l><>t)i 

Thus  translated  l>y  Pope:  of  law  and  fact  would  be  determined 

Two  urns  hy  Jove's  high  throne  have  l>y  a   single  judge,   with    the    nominal 

ever  stood,  check   oi    ■  | >i>cal   to  a  superior  equally 

The  source  of  evil  f)-c,  and  one  of  good  ;  disposed    to    apply    the    principle    in 

From   thenre  the  cup  of  mortal   man  question? 

he  fills. 


104  INTRODUCTION. 

chief  abuses  to  which  it  is  liable.  The  peculiar  system 
existing  in  any  particular  place,  will  of  course  depend 
much  on  the  substantive  municipal  law  with  which  it 
is  connected,  the  customs  and  habits  of  society,  and 
the  standard  of  truth  among  the  population.  In  this 
it  only  shares  the  fate  of  laws  in  general :  of  which  t 
has  been  truly  said,  "  Perpetua  lex  est,  nullam  legem 
humanam  ac  positivam  perpetuam  esse."  (_/")  "  Leges 
naturce  perfectissimse  sunt  et  immutabiles :  Leges 
humanoe  nascuntur,  vivunt,  et  moriuntur."  (g) 

(/)  Bacon,  Max.  sub  reg.  19.  (g)  Calvin's  Case,  7  Co.  2«.  a. 


OBJECT   AND    DIVISION  OF  THE   WORK 


PARAGRAPH. 

Object  of  the  Work     .     .     .     , 76 

Division  of  the  work 76 


76.  The  Judicial  evidence  of  any  system  of  juris- 
prudence may  be  defined,  as  that  branch  of  its  adjec- 
tive law  which  ascertains  the  nature,  determines  the 
admissibility,  controls  or  modifies  the  effect  of  the  evi- 
dence adduced  before  its  tribunals,  and  regulates  their 
practice  relative  to  the  offering,  opposing,  and  receiv- 
ing it.  Having,  therefore,  in  the  Introduction  treated 
of  evidence  in  general,  and  of  judicial  evidence  as  dis- 
tinguished from  it,  we  proceed  to  the  more  immedi- 
ate obje<  1  of  the  present  work — the  system  of  judicial 
evidence  established  by  the  common  law  of  England, 
for  the  i!  e  of  its  ordinary  and  regular   tribunals,  on 

the  trial    of  facts  in    question  before   them — known    in 

practice  by  the  title  of  "The  Law  of  Evidence."     It 

is  necessary  to  be  thus  precise,  for  several  ether  kinds 
of  evidence  are  observable  in  our  jurisprudence.  By 
sundry  statutes,  also,  peculiar  modes  of  proof  are 
either  prescribed  or  permitted  in  certain   proceeding 

77.  "The  I  .aw  of  Evidence"  will  be  best  under- 
stood by  treating  of  it  under  the  lour  following  heads: 


106       OBJECT   AND    DIVISION    OF    WORK. 

and  the  present  work  is  divided  into   four  books  ac- 
cordingly. 

i.  The  English  Law  of  Evidence  in  general. 

2.  Instruments  of  Evidence. 

3.  Rules  regulating  the  admissibility  and  effect  of 

Evidence. 

4.  Forensic    Fractice  and  Examination   of  Wit- 

nesses. 


BOOK  I. 


THE  ENGLISH  LAW  OF   EVIDENCE   IN  GENERAL. 


Division  of  the  Subject. 

78.  This  Book  consists  of  two  Parts.  In  the  first 
it  is  proposed  to  take  a  general  view  of  the  English 
law  of  evidence  ;  the  second  will  be  devoted  to  the 
history  of  its  rise  and  progress,  with  some  observations 
on  its  actual  state  and  prospects. 

PART    I. 
GE.NERAL  VIEW  OF  ENGLISH  LAW  OF  EVIDENCE. 


'lit  of  cvi 


Grounds  of  judicial  evidence  in  general     .... 
Characteristic  features  of  the  English  system     . 

1.  The  admissibility  of  evidence  is  matter  of  law,  the  we 

dence  i->  matter  of  fact      ..... 

•i.  Common-law  tribunal  for  de<  iding  issues  of  fact   . 

Prim  iple  1  on  which  it  is  founded         .        . 

3.  Rule   regulating  the  admissibility  of  evidence      . 

Three  kinds  <>f, 

1.  Relating  to  evidence  in  causa  . 

2.  Relating  to  evidence  extra  caubam  . 

3.  Rules  "i  foi  en  11c  pro*»f    . 

One  general  rule  of  evidence   in  causa — The   best  cvi 
must  be  given         .... 
'I  his  rule  very  ofte  1  mi  (understood 
Three  chiel  applications  ol  il 

1.  Judge  and  jury  mu  I  not  decide  fac 

pel  lonal  knowli 

2.  Exaction  ofoiig  nal  and  rejection  of  derivative 

evidi  .... 


PARAGRAPH 

80 


lence 


v  on   thei 


81 

82 

*3 
8b 

86 

8b 
86 

87 
87 
88 

89 

89 


io8  ENGLISH   LAW   OF  EVIDENCE. 

PARAGRAPH 

f.haracteri.,tic  features  of  the  English  system — continued. 

3.  There  must  be  an  open  and  visible  connec- 
nection  between  the  principal  and  the  evi- 
dentiary facts .89 

Indicative  evidence      .  .....         93 

The  rules  of  evidence  are  in  general  the  same  in  civil 

and  criminal  proceedings  .....         94 

Difference  as  to  the  effect  of  evidence    in   civil    and 
criminal   proceedings         ......         95 

How  far  the  rules  of  evidence  may  be  relaxed  by  con- 
sent    97 

Two  other  remarkable  features  of  the  English  system       ....       100 
Checks  on  witnesses, 

1.  Viva  voce  examination    ........       IOO 

2.  Publicity  of  judicial  proceedings    ....  .         .       IOO 

Exceptions  to    the  rule  requiring  the  personal  attendance  of  wit- 
nesses at  trials 101 

Salutary  effect  of  the  publicity  of  judicial  proceedings  on  the  tribu- 
nals and  spectators         .  ........       106 

79.  The  necessity  for  judicial  evidence,  as  distin- 
guished from  natural  or  moral  evidence,  has  been 
shown  in  the  Introduction  to  this  work,  to  arise  out 
of  the  nature  of  municipal  law  and  the  functions  of 
judicial  tribunals.  The  limitations  which  can  properly 
be  imposed  by  municipal  law  on  tribunals  investigat- 
ing facts,  were  there  traced  to  the  following  princi- 
ples. First,  The  maxim  "  Optima  est  lex,  quie  mini- 
mum relinquit  arbitrio  judicis  ;"  (a)x — the  power  of 
tribunals  would  be  absolute,  if  bounds  were  not  set  to 
their  discretion  in  declaring  facts  proved  or  disproved. 
Secondly,  The  necessity  for  speedy  action  in  tribu- 
nals; which  renders  it  part  of  the  duty  of  the  legis- 
lator to  supply  rules  for  the  disposal  of  all  matters 
which  come  before  them,  however  difficult  or  even 
impossible  it  may   be  to  get  at   the    truth.     Thirdly 

(a)  Bac.  de  Augm.  Scient.  lib.  8,  c.  3,  tit.  1,  Aphorism.  46. 

1  That  system  of  law  is  best  which  confides  as  little  as 
possible  to  the  discretion  of  the  judge. — Broom,  Leg.  Max. 
p.  81. 


GENERAL     VIEW.  iuy 

The  evils  that  would  arise  from  considering  only 
the  direct,  and  disregarding  the  collateral,  con- 
sequences of  decisions.  Lastly,  the  difference  between 
the  investigation  of  historical  truth,  and  of  the 
facts  which  come  in  question  in  courts  of  justice, — the 
characteristic  dangers  to  which  the  latter  is  exposed, 
requiring  that  characteristic  securities  should  be  framed 
to  meet  them.  It  was  further  shown,  that  while  these 
principles  may  be,  and  frequently  have  been,  over- 
stepped and  pushed  beyond  their  legitimate  limits,  the 
chief  abuses  to  be  guarded  against  by  the  legislator  in 
dealing  with  judicial  evidence  are  twofold.  First,  the 
creation  of  a  technical  and  artificial  system  of  belief, 
dependent  on  the  presence  of  evidence  in  some  partic- 
ular quantity,  without  regard  to  its  weight  and  credi- 
bility; and,  secondly,  the  establishment  of  rules  too 
stringent  and  technical  to  be  always  enforced,  which 
a  dishonest  or  prejudiced  tribunal  would  conse- 
quently be  enabled,  without  danger  to  itself,  to  insist 
on  or  relax,  according  to  its  interest,  pleasure,  or 
capii<  i  . 

80.  The  characteristic  features  of  the  English  system 
of  judicial  evidence,  like  those;  of  every  other  system, 
.11  ■  1  ssentially  connected  with  the  constitution  of  the 
tribunal  1>\  which  it  is  administered;  and  may  be 
stated  as  consisting  of  three  great  principles.  1.  The 
admissibility  of  evidence  is  matter  of  law,  but  the 
weight  or  value  of  evidence  is  matter  of  fact.  2.  Mat- 
ters of  law,  including  the  admissibility  of  evidence,  are 
proper  to  be  determined  by  a  fixed,  matters  ol  fact 
by  a  casual,  tribunal.  3.  tn  determining  the  admis- 
sibility of  evidence,  the  production  of  the  best  evi- 
dence should  be  exacted.  We  propose  to  consider 
these  in  their  order;  and  will  afterwards  notice  two 
other  remarkable  features  of  our  system,  li      charac- 


no  ENGLISH   LAW   OF   EVIDENCE. 

teristic  indeed,  but  exercising  a  most  powerful  influ- 
ence in  extracting  truth  and  securing  rectitude  of 
decision ;  namely,  the  mode  in  which  evidence  is  re- 
ceived by  our  tribunals,  and  the  publicity  of  our  judi- 
cial proceedings. 

8 1.  The  first  of  the  three  may  be  dispatched  in  a 
few  words ;  as  the  least  reflection  will  show  how  ab- 
surd it  would  be  in  any  legislator  to  attempt  to  lay 
down  rules  for  estimating  the  credit  due  to  witnesses, 
or  the  probability  of  every  fact  which  may  present  it- 
self, in  the  innumerable  combinations  of  nature  and 
human  action.  (6)  The  reliance  to  be  placed  on  the 
statements  of  witnesses,  and  the  inferences  to  be  drawn 
from  facts  proved,  must  therefore  be  left  for  the  most 
part  to  the  sagacity  of  tribunals.  But  even  here,  for 
the  reasons  already  given,  some  limits  must  be  im- 
posed ;  and  the  same  causes  which  render  artificial 
rules  of  evidence  essential  to  the  administration  of 
justice,  show  that  those  rules  ought,  as  far  as  possible, 
to  partake  of  the  nature  of  other  rules  of  municipal 
law.  (V)     And  however  constituted  the  tribunal,  but 

{b)  The  following  passage  from  the  nullo  certo  modo  satis  definiri  potest  : 

Digest    is    commonly   cited    in   proof  sicut  ncn  semper,  ita  saepe  sine  publicis 

and  illustration  of  this: — "  D.  Hadn-  monumentis  cujusquerei  Veritas  depre- 

anus    Vivio    Varo    Legato    provincae  henditur:  alias  numerus  testium,  alias 

Cdicine    rescripsit,   eum,    qui    judicat,  dignitas    et    auctoritas :    alias    veluti 

magis    posse    scire,   quanta    fides   ha-  consentiens  fama  confirmat  rei,  de  qua 

benda    sit    testibus.      Verba    epistolae  quaeritur,  fidem.     Hoc  ergo  solum  tibi 

haec    sunt :    '  Tu    magis    scire    potes,  rescribere     possum     summatim,     non 

quanta  fides  habenda  sit  testibus  :  qui,  utique  ad   unam  probationis  speciem 

et   cujus   dignitatis,   et   cujus   aestima-  cognitionem    statim    alligari    debere : 

tionis  sint :  et  qui  simpliciter  visi  sint  sed  ex  sententia  animi  tui  te  aestimare 

dicc-re,  utrum  unum  eundemque  med-  oportere,  quid  aut   credas,  aut  parum 

itatum  sermonem  attulerint  ;  an  ad  ea,  probatum  tibi  opinaris.'     Idem  Divu? 

quae  interrogaveras,  extempore  verisi-  Iladrianus   Junio    Rufino    Proconsuli 

jnilia  responderint.'     Ejusdem  quoque  Macedonae  rescripsit,  '  test'bus  se,  non 

Principis  extat  rescriptum  ad  Valerium  testimoniis    crediturum.'  "      Dig.    lib. 

Yi  rum  de  excutienda  fide  testium,  in  22,  tit.  13,  I.  3,  §§  1.  2,  3. 
h;ec  verba  :  '  Quae  argumenta  ad  quern  (c)  Introd    pt.  2. 

modum  probandae  cique  rei  sufficiant, 


GENERA  L     VIE  W.  1 1 1 

especially  when  it  is  of  the  mixed  form  that  will  be 
described  presently,  the  true  line  seems  to  be,  that  the 
rules  of  law  on  this  subject  ought  in  general  to  be 
confined  to  the  admissibility  of  proof,  leaving  its 
weight  to  the  appreciation  of  the  tribunal. 

82.  Secondly,  The  ordinary  common  law  tribunal 
for  deciding  issues  of  fact,  (d)  consists  of  a  court 
composed  of  one  or  more  judges,  learned  in  the  law 
and  armed  with  its  authority ;  assisted  by  a  jury  of 
twelve  men,  unlearned  in  the  law,  taken  indiscrimin- 
ately from  among  the  people  of  the  county  where 
the  venue  it  laid,  and  possessing  property  to  a  defined 
amount.  No  "  recusatio  judicis"  is  allowed,  as  far  as 
the  court  is  concerned  ;  but  jurors  are  required  to  be 
"  omni  exceptione  majores,"  and  may  be  challenged 
by  the  litigant  parties  for  want  of  the  requisite  qualifi- 
cations, as  well  as  for  certain  causes  likely  to  exercise 
an  undue  influence  on  their  decision ;  in  addition  to 
which,  persons  accused  of  treason  or  felony  are  allowed 
to  challenge  peremptorily,  without  cause,  the  former  as 
many  as  thirty-five,  the  latter  twenty,  of  the  panel. 
The  court  is  charged  with  the  general  conduct  of  the 
proceedings — it  decides  all  questions  of  law  and  prac- 

(d)  In  some  few  instances  the  trial  Vict.  c.  74,  s.  5),  enabled    the  court  or 

was,    at    common    law,    by    the    court  a  judge   to    try  causes  without   a  jury, 

without   a   jury:   i.   e.,   trial    by   the  if  the   parties  by  consent  in  writing 

record,     inspection,     certificate,     and  empowered   them   to   do   so:   but    the 

witnesses  (3  Blackst.  Com.  330),    The  verdict  was  not   to  be  questioned  on 

9  &  10  Vict.  c.  05,  s.  (><),  empowers  the  ground  of  its  being  againsl   the 

judges   of  county  courts    to    try  epics-  weight    of    evidence.      And    now,    by 

tions  of  fact  without  a  jury,  provided  the   "Supreme   Court  of    Judicature 

neither  party  t<    the  action  requires  a  Act,    1875"   (36  &   37    Vict.   c.    66), 

jury  to  be  summoned.    So  the  21  &  22  Sched.,    Rule    30:— actions    may    be 

Vict.  c.  27,  s.  5  empowered  the  court  tried  and  heard,  either  before  a  judge 

of  chancery            er  any  question  of  or  judges;  01    before   a  |udge     i 

fact,  arising  in  any  suit  or  proceeding,  with  assessors;  or  before  a   judge  o.i 

to   be    tried    before    the    court    itself,  jury;  or  before   .in   official    or  special 

without  a  jury;  so  the  17  and  18  Vict.  referee,  with  or  without  assessors. 
c.    125,  s.  1  (as   amended    by  21    &    22 


ii2  ENGLISH   LAW    OF   EVIDENCE. 

tice,  including  the  admission  and  rejection  of  evi- 
dence ;  and  when  the  case  is  ripe  for  adjudication, 
sums  it  up  to  the  jury — explaining  the  questions  in 
dispute,  with  the  law  as  bearing  on  them  ;  pointing 
out  on  whom  the  burden  of  proof  lies ;  and  recapitu- 
lating the  evidence,  with  such  comments  and  observa- 
tions as  may  seem  fitting.  Moreover, — as  the  deci- 
sions of  tribunals  on  questions  of  fact  ought  to  be 
based  on  reasonable  evidence,  and  when  the  facts  are 
undisputed,  the  decision  as  to  what  is  reasonable  is 
matter  of  law,  and  consequently  within  the  province 
of  the  court,  (e) — it  follows  that  it  is  the  duty  of  the 
court  to  determine  whether,  assuming  all  the  facts 
proved  by  the  party  on  whom  the  burden  of  proof 
lies  to  be  true,  there  is  any  evidence  on  which  the  jury 
could  properly,  i.e.,  without  acting  unreasonably  in  the 
eye  of  the  law,  decide  in  his  favor.  And  if  there  be 
not,  then  the  judge  ought  to  withdraw  the  question 
from  the  jury,  and  direct  a  non-suit,  if  the  onus  is  on 
the  plaintiff;  or  direct  a  verdict  for  the  plaintiff,  if  the 
onus  is  on  the  defendant.  (_/")  "  Whether  there  be  any 
evidence,  is  a  question  for  the  judge.  Whether  suffi- 
cient evidence,  is  for  the  jury."  (jr)  On  the  other 
hand,  the  decision  of  the  facts  in  issue  is  the  exclusive 
province  of  the  jury ;  who  are,  therefore,  to  hear  the 
evidence  and  the  comments  made  on  it,  to  determine 
the  credit  due  to  the  testimony  of  the  witnesses,  and 
to  draw  all  requisite   inferences  of  fact   from  the  evi- 

(e)  Mitchell    v.  Willinms,   ri    M.  &  N.    S.   657;    Hodges    v.   Ancrum,    II 

W.  205,  216,  per  Aldcrson,  P>.  Exch.  214;   Avery  v.  Bowdcn,  6   E.  & 

if)  Per   Willes,   J.,  delivering  the  15.962,  973-4;  Hall   v.  Featherstone, 

judgment  of  the   court,  in    Ryder   v.  4    Jurist,    N.    S.  813,    814,  per    Mar- 

Womhwell   (in    Cam.  Scac.)   L.   R.,  4  tin,  B. 

Ex.  32,  38  ;  and   see   Toomey  v.  The  (g)  Carpenters'  Company  v.  Hay- 
Brighton    Railway  Company,  3   C    B.,  ward,  1    Dougl.  374,   375,  per   Buller, 
N.  S.  146  ;  Cornman  v.  The   Eastern  J.     See  also   1    Phil.  Ev.  4,  10th  ed. ;  ' 
Counties   Railway  Company,  5  Jurist,  R.  v.  Smith,  Leigh  &  Cave,  C  C.  607. 


GENERAL     VIEW.  113 

dence.  This  division  of  the  functions  of  the  judge 
and  jurv  is  expressed  by  the  maxim,  "ad  quacstionem 
facti  non  respondent  judices  ;  ad  qucestionem  juris  non 
lespondent  juratores."  (Ji)  Thus,  where  the  defendant 
in  an  action  for  malicious  prosecution,  gives  evidence 
to  prove  reasonable  and  probable  cause,  it  is  for  the 
jury  to  find  the  facts ;  and  it  is  for  the  judge  to  decide, 
as  matter  of  law,  whether  the  facts  proved  amount  to 
reasonable  and  probable  cause,  (z )  But  the  above 
maxim  must  be  taken  with  these  limitations.  1st. 
Facts  on  which  the  admissibility  of  evidence  depends, 
are  determined  by  the  court,  and  not  by  the  jury.  (/') 
Thus,  whether  a  sufficient  foundation  is  laid  for  the 
reception  of  secondary  evidence,  is  for  the  judge,  (7) 
and  if  the  competency  of  a  witness  turns  on  any  dis- 
puted fact  he  must  decide  it.  (m)  So,  whether  a 
confession  in  a  criminal  case  is  receivable,  (;z)  and 
whether,  on  a  charge  of  homicide,  a  dying  declaration 
was  made  by  the  deceased,  at  a  time  when  he  was 
under  the  conviction  of  his  impending  death,  in 
which  case  alone  it  is  admissible.  (0)1     And   it  seems 

(//)  This  maxim   is  frequent  in  our  Parsons,  1  Cr.  &  M.730;  Welstead  v. 

old  books;  Co.    I.itt.   155  b,  266,  a,  Levy,   1    Moo.  &    R.   13S  ;    Boyle  v. 

20.5  b  ;  8  Co.  155  a  ;  9  Id.  13  a.  25  a  ;  Wiseman,  11   Excli.  3<>i>. 
11  [d.iob;  Vaugh.  I4q,  &c,  &c. ;  but         (I)  Bennison    v.   Jewison,    12    Jur. 

many  of  our  Aril!   probably  be  485,  per  Aldei  on    B. 

•urpri  -'1   to  find  that  ii  has  also  i  (>//)  Bartlett   <-.  Snii'h,  11    M.  &  W. 

per  Parke,  B.  ;  R,  v,  I  [ill,  2 

Bonn  Preuve  .  .'  - 1  Den,  C,  C  25 1. 

ranton    -■.    Wil  im.  («)  R.  v.  Warringham,  2  Den.  C.  C. 

4 17.  note  ;   '5  Jur.  318. 
(*)  ii.  11    M.  &  W  (0)  Reg     .  Jenkins,   '■..   Rep.,  1   C. 

B  ;  «  leave  v  C    187;  Bartletl   v.  Smi  Ii,    1 1    M.  Ov 

Jones,  7  Exi  1    t  - '  .  Benn  Jew-  \v.  ..|-;,  (86,  per  Parke    II 

i,  t2  Jur,  7'.  Jewison,    12   Jur.  485,  |»er  AIi 

Davie  ,    to   Q     B.    314  ;    (  orfield    v.  son,  I 

'Siaic  v.  Hanna,  10  La.  Ann.  131;  and  this,  filthon 
the  accused  was  nol  preseni  when  the  declarations  w< 
made  (People  v.  Green,  1    Denio,  614;  State  v.   Brnnelto,   13 

8 


H4  ENGLISH   LAW   OF  EVIDENCE. 

the  better  opinion  that,  for  the  purpose  of  determin- 
ing  such    collateral    questions,   the  judge  is  not  re- 

l.a.  Ann.  45).  These  declarations,  however,  must  be  made 
under  a  sense  of  impending  dissolution  (Commonwealth  v. 
Densmore,  12  Allen,  535);  though  even  a  faint  hope  of  recovery 
has  been  held  to  exclude  them  (People  v.  Anderson,  5  Wheel. 
C.  C.  398;  but  see  Jackson  v.  Commonwealth,  19  Gratt.  656; 
State  v.  Moody,  2  Haywood,  31  ;  State  v.  Mendicott,  8  Kan. 
257;  and  the  English  case  of  Rex  v.  Jonkins,  11  Cox,  C.  C. 
250).  They  need  not  be  made  immediately  preceding  death 
(Commonwealth  v.  Cooper,  15  Allen,  495  ;  State  v.  Oliver,  4 
Houst.  585  ;   1   Greenl.  on  Ev.  §  158;    McDaniel  v.  State,  8  S. 

6  M.  490;  State  v.  Poll,  1  Hawks.  442;  and  see  State  v.  Free- 
man, 1  Spears,  57  ;  Commonwealth  v.  Cooper,  5  Allen,  495). 
It  has  been  held  in  England,  that  it  woidd  make  no  difference 
whether  or  not  the  attending  physician  had  hopes  of  the 
patient's  recovery  (Rex  v.  Mosley,  1  Moody,  97  ;  Rex  v.  Peel, 
2  F.  &  F.  21).  Whether  one  believes  himself  to  be  at  the 
point  of  death  may  be  inferred  from  circumstances  (See  Mont- 
gomery v.  State,  11  Ohio,  424;  Anthony  v.  State,  7  Meigs  R. 
265  ;  People  v.  Grunzig,  1  Parker  C.  R.  299;  People  v.  Knick- 
erbocker, Id.  302;  Hill's  Case,  2  Gratt.  594;  Nelson  v.  State, 

7  Humph.  441  ;  Brakefield  v.  State,  1  Sneed  (Term.)  215  ;  Mor- 
gan v.  People,  31  Ind.  193;  People  v.  Perry,  8  Abb.  (N.  Y.) 
Pr.  N.  S.  27;  Kilpatrick  v.  Commonwealth,  7  Casey,  198; 
Muiphy  v.  People,  37  111.  477  ;  Commonwealth  v.  Williams,  2 
Ashm.  69;  Lewis  v.  State,  9  Sm.  &  M.  115).  And  the  reaffirm- 
ance,  under  a  sense  of  impending  dissolution,  of  prior  declara- 
tions will  have  the  weight  of  dying  declarations  (Young  v. 
Commonwealth,  2  Bush  (Ky.)  312).  But  where  an  attorney 
asked  questions  of  a  dying  man,  and  the  latter's  attempts  to 
answer  were  "  explained  by  friends  to  the  attorney,  who  wrote 
them  down,  and  read  what  he  had  written  to  the  dying  man, 
who  nodded  his  head,"  it  was  not  held  to  be  a  dying  declara- 
tion (See  McHugh  v.  State,  31  Ala.  317  ;  Barnett  v.  People,  54 
111.  324;  Young  v.  Commonwealth,  6  Bush.  (Ky.)  312;  State 
v.  Shelton,  2  Jones  (Law)  N.  C.  360;  Hudson  v.  State,  3  Cold. 
(Tenn.)  355;  Ilackeit  v.  People,  54  Barb.  370;  Anderson,  in 
re,  20  Up.  Can.  Q.  B.— ;  R.  v.  Peltier,  4  Low.  Can.  R.  3;  Wil- 
son v.  Boerum,  15  Johns.  286;  Wooten  v.  Wilkins,  39  Ga.  223; 
State  v.  Fitzhugh,  2  Oregon,  227;  State  v.  Wilson,  23  La. 
Ann.  55-S).  The  sense  of  impending  dissolution,  however, 
:;iust  be  so  solemn  as  to  preclude  the  probability  of  malice 
(Montgomery  v.  State,    11    Ohio,  424;   Dunn    v.  State,  2   Pike, 


GENERAL     VIEW.  115 

stricted  to  legal  evidence.  (/)  2nd.  The  jury  thus 
far  incidentally  determine  the  law,  that  their  verdict  is 
usually  general,  i.e.  guilty,  or  not  guilty,  for  the  plain- 

(/)  Duke  of  Beaufort  v.  Crawshay,  H.  &  R.  638,  and  cases  cited. 

229;  State  v.  Poll,  1  Hawks.  442).  For,  as  says  Wharton  on 
Homicide  (§  746,  which  see),  we  must  be  careful  not  "to  sub- 
stitute the  death-bed  for  the  witness-box,  and  to  make  the 
dying  hour  the  period  when  all  persons  knowing  anything 
about  a  case  should  be  interviewed  on  the  subject''  (Com- 
monwealth v.  Williams,  2  Ashm.  69;  1  Greenl.  on  Ev.  §  158; 
2  Russ.  on  Cr.  752  ;  Hill's  Case,  2  Gratt.  594 ;  Nelson  v.  State, 
7  Humph.  542;  Moore  v.  State,  12  Ala.  764;  Biakefield  v 
State,  1  Sneed,  215  ;  Starkey  v.  People,  17  111.  17  ;  Robbins  v. 
State,  8  Ohio  St.  R.  N.  S.  131;  Brown  v.  State,  32  Miss.  (3 
Georg.)  433;  Kilpatrick  v.  Commonwealth,  7  Casey,  198; 
Commonwealth  v.  Densmore,  12  Allen,  535  ;  Dixon  v.  State, 
13  Flor.  636;  Commonwealth  v.  Britton,  1  Legal  Gaz.  R.  513; 
State  v.  Simon,  50  Mo.  746).  And  the  constitutional  provision, 
that  the  accused  shall  be  confronted  by  the  witnesses  against 
him,  does  not  abrogate  the  common-law  principle,  that  declar- 
ations in  extremis  are  admissible  (Woodorder  v.  State,  2  How. 
(Wis.)  655  ;  Anthony  v.  State,  1  Meigs,  245  ;  Campbell  v.  State, 
11  Ga.  355  ;  Robbins  v.  State,  8  Ohio  St.  R.  N.  S.  131  ;  State 
v.  Nash,  7  Iowa,  347;  Miller  v.  State,  25  Wis.  384).  In  all 
other  respects  dying  declarations  will  be  construed  by  the 
rules  of  evidence.  For  instance,  they  may  be  received  either 
for  or  against  tin;  accused  (United  States  v.  Taylor,  4  Crunch, 
C.  C.388;  Moore  v.  State,  i  -'  Ala.  764).  They  must  relate  to 
(li<-  re  gestae  (Johnson  v.  Slate,  17  Ala.  618  ;  lien  v.  State,  37 
Id.  103;  Siatc  v.  Shelton,  _>  Jones,  N.  C.  360;   Leiber.v.  State, 

i)  Mush.   1  1  ;    Nelson   v.  State,  7    1  lunipli.  542  ;    Mose  V.  Stale,  35 

Ala.  421 ;  but  see  Donelly  v.  State,  2  Dutch.  (X.  J.)  463,  601 ; 

Same    v.  Same,    2     Dutch,  496  J    State    v.   Wilson,    23     La.  Ann 

-t.,t-  \.  Terrell,  12  Rich.  (S.  C.)  321  ;  R.  v.  Baker,  2  M. 
&  R.  5  1  ;  Brown  v.  Commonwealth,  7;,  Pa.  St.  321;  State  v. 
Fitzhugh,  2  Oregon,  227;  Hudson  v.  State,  3  Cold.  (Tenn.) 
355;  llaikett  \.  People,  54  Barb.  370).  Though  the  admissi- 
bility oi  such  declarations  as  evidence,  ami  not  as  dying 
declarations,  will  of  course  depend  upon  the  ordinary  rules 
oi  evidence  (Commonwealth  v.  McPike,  3  Cush.  181 ;  Same 
*..  Hackett,  •  Ulen,  136;  States  Porter,  34  Towa,  131 ;  State 
v.  Wagner,  61  Me.  1 7 '■; ;  Denton  v.  State,  1  Swan  (Tenn.)  279). 
They  must   be  subject  to  qualification  by  evidence  as  to  the 


1  [6  ENGLISH    LAW    OF   EVIDENCE. 

tiff,  or  for  the  defendant — such  a  verdict  bcincr  mani- 
festly  compounded  of  the  facts,  and  the  law  as  appli- 
cable to  them.     But  although   the  jury  have  always  a 

mental  capacity  of  the  person  making-  them  (Donelly  v.  State 

2  Dutch.  (N.  J.)  6013)  ;  or  to  objections  as  to  incompetency. 
If  by  persons  who  cannot  testify  against  each  other,  as  hus- 
band and  wife  (Moore  v.  State,  2  Ala.  764);  or  for  other  ob- 
jections, ^r.,  as  infancy  (Rex  v.  Pike,  3  C.  &  P.  598;  but  see 
Rex  v.  Perkins,  2  M.  C.  C.  135  ;  S.  C,  9  C.  &  P.  395).  That 
the  person  was  an  infidel  (Goodal  v.  State,  1  Orcg.  ^2>2> !  but 
see  People  v.  Sanford,  43  Cal.  29)  ;  or  infamous  (Drummond's 
Case,  1  Leach,  337);  or  mentally  incapabie  (Commonwealth 
v.  Casey,  11  Cush.  (Mass.)  417  ;  Donelly  v.  State,  2  Dutch.  496); 
or  if  the  statement  was  mere  matter  of  opinion  (State  v.  Wil- 
liams, 68  N.  C.  62  ;  but  see  Wroe  v.  State,  20  Ohio  St.  460); 
or  if  contradictory  (McPherson  v.  State,  9  Yerger,  279;  People 
v.  Lawrence,  21  Cal.  368;  People  v.  Knapp,  1  Edm.  (N.  Y.) 
Scl.  Cas.  177;  Commonwealth  v.  Lenox,  3  Brewster,  249; 
Kurd  v.  People,  25  Mich.  405  ;  People  v.  Knapp,  26  Id.  142; 
but  see  Wroe  v.  State,  20  Ohio  St.  R.  460) ;  or  if  disconnected 
and  fragmentary  (Wroe  v.  State,  ubi  supra ;  but  see  Vass  v. 
Commonwealth,  3  Leigh,  786  ;  State  v.  Patterson,  45  Vt.  308); 
or  the  deceased's  character  and  reputation  for  truth  maybe  im- 
peached (People  v.  Knapp,  1  Edm.  Sel.  Cas.  177  ;  but  see  Car- 
ter v.  People,  2  Hill,  (N.  Y.)  317  ;  Nesbitt  v.  State,  13  Ga.  235  , 
Donelly  v.  State,  2  Dutch.  496)  ;  or  for  inaccuracy  (Common 
wealth  v.  Cooper,  5  Allen  (Mass.)  495) ;  and  the  credibility  ot 
the  declaration  is  a  question  for  the  jury  (Moore  v.  State,  12  Ala 
764;  Starkey  v.  People,  17  111.  7);  its  admissibility  one  for  the 
court  (Donelly  v.  State,  2  Dutrh.  (N.  J.)  463,  601  ;  Johnson  v. 
State,  47  Ala.  9  ;  McDaniel  v.  State,  8  S.  &  M.  401 ;  Hill's  Case, 

2  Gratt.  594  ;  People  v.  Glenn,  10  Cal.  32  ;  Starkey  v.  People. 
17  111.  17  ;  State  v.  Poll,  1  Hawks,  442  ;  Lambeth  v.  State,  2^ 
Miss.  322;  Commonwealth  v.  Murray,  2  Ashm.  41;  State  v. 
Williams,  68  N.  C.  62;  Dixon  v.  State,  13  Ela.  636;  contra, 
Campbell  v.  State,  11  Ga.  354).  It  has  been  held,  however, 
that  evidence  as  to  the  malice  borne  by  the  person  making 
the  declaration  against  the  accused  is  not  admissible  (State  v. 
Varney,  8  Boston,  L.  R.  542).  The  substance  of  dying  declara- 
tions is  admissible  in  evidence,  through  the  medium  of  inter- 
preters (Starkey  v.  People,  17  111.  17;  Montgomery  v.  State, 
1 1  Ohio,  424  ;  Ward  v.  State,  8  Blackford,  101  ;  Nelms  v.  State, 

3  Sm.  &  M.  500).  If  the  dying  declarations  were  reduced  to 
writing,  the  document  itself  must  be  produced  as  the  best  evi- 


GENERAL     VIEW.  117 

right  to  find  a  verdict  in  this  form,  yet  if  they  feel 
any  doubt  about  the  law,  or  distrust  their  own  powers 
of  applying  it,  they  may  find  the  facts  specially,  and 
leave  the  court  to  pronounce  judgment  according  to 
law  on  the  whole  matter,  {jff 

Errors  committed  by  the  court,  either  in  matters 
of  law  or  in  admitting  or  rejecting  evidence,  and  oc- 
casionally even  in  matters  of  practice,  are  corrected 
by  application  to  a  superior  tribunal,  (r)  And  if  a 
jury  misconduct  themselves  so  as  to  defeat  justice,  as 
for  instance,  if  they  determine  by  lot  what  verdict  to 
give,  or,  before  giving  it,  hear  other  evidence  besides 
that  which  was  adduced  in  open  court,  their  verdict 
will  be  avoided.  In  civil  cases,  moreover,  the  court 
will  grant  a  new  trial,  wherever  they  are  satisfied  that 
the  verdict  of  the  jury  is  in  contravention  of  the  law, 
whether  the  error  has  arisen  from  a  mere  misappre- 
hension of  the  law  by  the  jury,  (s)  or  their  verdict  is 
"  perverse,"  i.  c.  where  there  is  no  dispute  as  to  the 
facts,  and  the  jury,  disregarding  the  direction  of  the 
judge,  have  taken  the  exposition  of  the  law  into  their 
own  hands.  (/)      So   if  they  find  a  verdict  against  the 

(,/)  See  on  this  subject,  I.itt.  sects.  the  opinion  of  the  court  to  which  the 

,  367,  3'/-  .  1  o,    Lin.  226b,  and  applii  ition  is  made,  some  substantial 

.1;  Hargrave'    note   5)  to  Co   l.itt.  wrong  or  miscarriage  has  been  thereby 

155!);  Finch,    Law,  39);   3    Blackst,  1                i  inthetrialof  the  action." 

Com.  377,  378;  4   Id.  361;  and  32  (j)  Pei    Lord    Abinger,  C,   I!.,  The 

3,  c.  60.  Att.-Gen.  v.  Rogers,  11  M.  A  W.  670, 

Bui   by  tii'-  "Supreme  Court  of  673. 

Jndii  ature   .'.                              7  Vii  t.  (/ 1  M.;  and    tee  Mould  v.  Grifl 

6),  Sched.,  Rule  48,  "  A                 I  8  Jurist,   toio,   pei    Parke,  B. ;  Saun- 

II  not  be  granted,                ound  ol  ders          Davii   .    16    Jnr.    i|8r,    pei 

direction,  or   the  impropei    "Inn  Pollock,  C.  B. ;  Hawkin         VId< 

si. >n  or  1  C.  B.  640,  per  Jervis,  C.  J. ;  K  m 

dence;  the  whole  "I  the  do<  umenl  is  to  I"-  read,  and  mile  ss  it 
be   ]'>t    no  parol  e\  i<l<-n<  <■  oi  its  contents  is  admissible  (! 
Beets   v.  State,  1    Meigs,  106;  State  v.  Ferguson,  •   Hill,  619; 
Slate  v.  Martin,  30  Wis.  216;  Slate  v.  Patterson,  45  Vi    308) 


n8  ENGLISH   LAW   OF   EVIDENCE. 

evidence,  i.  c.  a  verdict  not  merely  erroneous  in  the 
judgment  of  the  court  above,  but  so  unequivocally 
against  the  weight  of  evidence  that  it  ought  not  to  be 
allowed  to  stand.  (?/)  New  trials  are  also  sometimes 
granted,  when  a  party  has  been  taken  by  surprise  at 
the  trial,  or  has  discovered  important  evidence,  un- 
known to  him  at  the  time  it  took  place ;  (x)  and  on 
some  other  grounds  to  which  it  is  unnecessary  to  re- 
fer. In  criminal  cases,  generally  speaking,  points  of 
law  must  be  reserved  by  the  judge,  and  new  trials  are 
not  grantable. 

83.  Having  given  this  sketch  of  the  course  of 
"trial  by  judge  and  jury,"  we  should  here  dismiss  the 
subject,  were  not  a  clear  perception  of  the  principle 
on  which  it  is  founded,  indispensable  to  a  right  under- 
standing of  our  rules  of  judicial  evidence.  Looking 
at  the  different  sorts  of  tribunals  which  have  existed 
in  different  ages  and  countries,  we  shall  find  this  dis- 
tinction running  through  them,  viz.,  that  some  are 
fixed  and  some  casual.  \y)  By  "  fixed  "  tribunals  are 
meant  those'  composed  of  persons  appointed,  either 
permanently  or  for  a  definite  time,  to  take  cognizance 
of  causes  of  a  specified  kind  ;  and  they  most  usually 
consist  of  men  who  have  made  legal  matters  the  sub- 
ject either  of  their  study  or  practice:  "  casual"  tri- 
bunals are  called  together  for  the  occasion  and  dis- 
missed when  the  cause  is  decided  ;  and  properly  should 
consist  of  private  individuals,  possessed  of  no  peculiar 
legal  knowledge.  Now,  each  of  these  has  its  advan- 
tages and  disadvantages.    For  the  decision  of  questions 

Poole,  Ca.  Temp,    llardw.  23,   26,  per  466.  See  also  Creed  v.  Fisher,  9  Exch. 

Hardwicke,  C.  J.  472. 

(»)**  The  discretion  of  the  court  to  (x)  Sec    2    Chit.   Archb.    nth   ed., 

grant  a  new  trial    must   he   a  judicial,  1515,1516. 

and  not  an  arbitrary  discretion  ;"  per  (y)  Paley's     Mor.il    and     Political 

Glyn,  C.  J.,  in  Wood  v.  Gun.-ton,  Sty.  Philo  ophy,  bk.  6,  ch.  8. 


GENERAL     VIEW. 


119 


of  abstract  law,  the  superiority  of  a  fixed  tribunal  is 
too  obvious  to  need  remark  ;  and  even  for  questions 
of  fact,  a  superior  education,  and  most  probably  a 
higher  order  of  intellect,  and  a  practical  acquaintance, 
from  the  experience  of  years,  with  men  in  general, 
with  the  tricks  of  witnesses,  and  the  sophistries  of  ad- 
vocates, might  seem  at  first  sight  almost  equally  de- 
cisive in  its  favor.  To  this  may  be  added,  that  the 
single  judge  seems  the  natural  and  primitive  form  of 
tribunal,  (2)  as  autocracy  seems  the  natural  and  prim- 

(=)  Whether  it  is  the  most  general      nal By  these  inquisitors  the  trial 


may  be  questioned.  In  the  early 
stages  of  society,  and  indeed  in  all 
countries  on  peculiar  emergencies, 
causes  are  decided  by  persons  of  sta- 
tion and  authoiity  without  reference 
to  any  supposed  special  qualification 
on  their  part:  it  is  only  as  civilization 
advance-,  and  laws  become  more  com- 
plicated, that  the  study  and  application 
of  them  assume  the  form  of  a  distinct 
profession.  Among  the  fews,  criminal 
cases,  at  least,  were  tried  by  the  elders 
of'  the  city,  at  it  ^  gate  (See  Deut."  xxi. 
19,  &c,  xxii,  15,  xxv.  7:  Ruth,  iv. 
1 —1 1  ;  Josh.  xx.  4;  ferem.  xxvi.  10, 
&.c.\  Amos,  v.  10-15,  &c).     And   the 

i'  e  "i   the  two  greatest   nal 
of   antiquity   is  thus  stated   by  one  of 
the  greatest  of  historians:  "  I 

us  oi  .\  1 1 1  -  ih  and  Rome  enj 
in   all   criminal   cases,  the   invalu 
privilege  oi  being  tried  by  theii  coun- 
try        I  1  ning 

for  the  tiial  i/f  ea<  h  oi 

ne  more  difficult,  as  the 

and  ih<'  offi  nders  continually 

multiplied  ;  and   the  ready  expedient 

!  ol  delegating  the  juris- 


was  prepared  and  directed  ,  but  they 
could  only  pronounce  the  sentence 
of  the  majority  of  judges,  who  with 
some  truth,  and  more  prejudice,  have 
been  compared  to  the  English  juries. 
To  discharge  this  important  though 
burdensome  office,  an  annual  list  of 
ancient  and  respectable  citizens  was 
formed  by  the  praetor.  After  many 
constitutional  struggles,  they  were 
chosen  in  equal  numbers  from  the 
senate,  the  equestrian  order,  and  the 
people;  four  hundred  and  fifty  were 
appointed  for  single  que  I  ions  ;  and 
the  various  rolls  or  decurias  of  ju 
must  have  contained  the  names  of 
some  thousand  Romans,  who  re] 
ed  the  judicial  authority  of  the 
In  each  particular  i  ause,  a 
1  number  was  draw  n  fri  >m  the 
urn  ;  their  integi ity  wa  1    by 

■    de  ol  ba  li  il     i  cut  ed 

tii'  ii   independence  ;  the    u  picion  oi 
partiality  wa  i  removed   bj  the  mutual 

i  and  defend 

ant In   his  civil  juri  dicti   n, 

the    prsetoi    ol    ih     city   was   truly  a 
judge,  and  almc  ;  but  as 


"ii  of  the  i  ■  the  ordinary  soon  as  he  had   p  tion 

"i    to   >  •■  i  iMidm.it v    in-  of  law,  he  often  n  i  tn 

In    the    hr.t    agi  the  determination   ol  the  facl 

ilions   were    rare   and    occasional,  Bui  whethet    he   acted   alone,  oi  with 

In  the  i  ag  of  the  seventh  ceu-  the   advice  of  h  il,  the  i 

turyof  Rome  tiny  were  made  perpet-  absolute  powers  might  be  trusted  to  a 


120 


ENGLISH    LAW    OF   EVIDENCE. 


itivc  form  of  government.  But,  as  was  said  by  the 
great  Athenian  legislator  with  reference  to  the  latter, 
(a)  "Absolute  monarchy  is  a  fair  field,  but  it  has 
no  outlet,"  (b)  so  the  evils  necessarily  incident  to  the 
former  immensely  outweigh  its  value.  Even  as  re- 
gards accuracy  of  decision,  the  advantage  in  deciding 
facts  is  on  the  side  of  the  casual  tribunal.  From  their 
position  in  life  its  members  are  likely  to  know  more 
of  the  parties  and  witnesses,  and  are  consequently 
better  able  to  enter  into  their  views  and  motives  ;  and 
from  the  novelty  of  their  situation  they  bring  a  fresh- 
ness and  earnestness  to  the  inquiry,  which  the  con- 
stant habit  of  deciding,  adjudicating,  and  punishing, 
fades  and  blunts  more  or  less  in  the  mind  of  every 
judge.  But  the  great  danger  of  a  fixed  tribunal  is 
methodical  or  artificial  decision — a  sort  of  decision  by 
routine,  arising  out  of  the  faculty  of  generalizing, 
classifying,  and  distinguishing,  which  is  so  valuable  in 
the  investigation  of  questions  of  mere  law.     This  is 


magistrate  who  was  annually  chosen 
by  the  voles  of  the  people.  The  rules 
and  precautions  of  freedom  have  re- 
quired some  explanation  ;  the  order 
of  despotism  is  simple  and  inanimate. 
Before  the  a;e  of  Justinian,  or  per- 
haps of  Oioclesian,  the  decurias  of 
Roman  judges  had  sunk  to  an  empty 
title  ;  the  humble  advice  of  the  as- 
sessors might  be  accepted  or  despised  ; 
and  in  each  tribunal  the  civil  and 
criminal  jurisdiction  was  administered 
by  a  single  magistrate,  who  was  rai-ed 
and  d' -graced  by  the  will  of  the  em- 
peror "  (Gibbon,  Decline  and  Fall  of 
the  Roman  Empire,  ch.  44,  vers. 
fincm.  See  also  Heinec.  ad  Pand. 
pais  2,  i  2  ;  Plutarch,  in  Vit.  Sol 
The  ancient  Germans  appear  to  have 
had  a  sy-tem  strongly  resembling  our 
own  (Savigny,  Gesch.  des  Rdmischen 
Rechts  in  Miltelalter,  I  band,  4  Kap.  , 


Id.  System  des  heutigen  Romischen 
Rechts,  1  Buch,  3  Kap.;  Colquhoun's 
Summary  of  the  Roman  Civil  Law, 
pt.  1,  §  119);  and  it  seems  that,  for 
the  mode  of  trial  by  a  single  judge, 
so  long  prevalent  on  the  continent 
of  Europe,  we  are  chiefly  indebted  to 
the  lower  empire,  whose  practice  the 
civilians  and  canonists  copied,  per- 
haps extended,  in  preference  to  that 
of  Athens,  and  of  Rome  before  .she 
lost  her  liberties. 

(a)  IJpoi  rsS  q>ih  ffS  einev  (coS  \e- 
yf.tat)   xaXov  ju£v.  eivairrjv  rv- 

pavviSa  x°°(Ji''n')  °vx  fXF,y  $* 
Ctltofiadiv.  Plutarch,  in  Vit.  Solon. 
(/>)  In  modern  times  it  has  been 
compared  to  a  high-pressure  steam 
engine  without  a  safety-valve.  See 
letter  signed  "An  Hertfordshire  In. 
cumbent,"   limes,  June  23,  1S60. 


GENERAL     VIEW.  121 

clearlv  stated  by  the  Marquis  Beccaria,  whose  testi- 
mony is  the  more  valuable  from  being  that  of  a 
foreigner.  (V)  "  I  deem  that  the  best  judicial  system, 
which  associates  with  the  principal  judge  assessors, 
not  selected,  but  chosen  by  lot ;  for,  in  such  matters, 
ignorance  which  judges  by  sense,  is  safer  than  science 
which  judges  by  opinion.  Where  the  law  is  clear  and 
precise,  the  duty  of  the  tribunal  is  limited  to  ascer- 
taining the  existence  of  facts ;  and  although,  in  seek- 
ing the  proofs  of  crime,  ability  and  dexterity  are  re- 
quired ;  although,  in  humming  up  the  result  of  those 
proofs,  perspicuity  and  precision  are  indispensable ; 
still,  in  order  to  draw  a  conclusion  from  them,  nothing 
more  is  required  than  plain  ordinary  good  sense — less 
fallacious  than  the  Learning  of  a  judge  accustomed  to 
seek  the  proofs  of  guilt,  and  who  reduces  everything 
to  an  artificial  system  formed  by  study."  And  here  it 
is  essential  to  remember  that  the  consequences  of  the 
errors  of  the  casual  tribunal  are  immensely  less. 
Theirs  are  mostly  errors  of  impulse,  and  their  con- 
sequences  are  almost  entirely  confined  to  the  actual 
case  in  which  they  are  committed.  The  errors  of  a 
fixed  tribunal,  on  the  contrary.are  1  lie  errors  of  system, 
and  their  effects  are  lasting  and  general.  Their  deci- 
ms,  proceeding  as  they  do  from  persons  in  author- 
ity, will,  <   pecially  if  ever  so  slightly  involving  a  point 

[uella,  4  1  •<   i  hiarez  :a  e  p 

chc  >tab  ri  al  giudici  prin-  per  giudicam  0  m  di    imo, 

,   dalla   sorte,  e  non  dalla  non 

i  ordinario   buon     en  0,    meno   fall  nee 

per  1  he  i  fat  to  a 

iudica  irolei   trovar  rei, 

per   opinione.     Dove    l<  »ono  tin    -1  tenia    fatli; 

•  'li  1111  giudice  ttudj."     I  ,  Dei   Dclitii  e  delle 

non  ■  in  altro  <  he  'li  a<  certare  I'ene,  §  7 

un  fatto.     Se  1  re  le  prove  dl  of  Abbolt,  C.    [.,  in    R.  v.  Bui  1 

un    deli  •     de-  I:    ..     \  and  Paley's   J 

strc.  .itanie  il  risultai  i  and  1  h.  8 


122  ENGLISH    LAW    OF   EVIDENCE. 

of  law,  be  reported,  or,  what  is  even  more  objectionable, 
remembered  without  being  reported,  and  form  pre- 
cedents by  which  future  tribunals  will  be  swayed. 
Nor  is  even  this  the  worst — the  judge  to  whom 
the  precedent  made  by  his  predecessor  is  cited,  is  safe 
from  censure  if  he  follows  it ;  while  on  the  other  hand, 
being  erroneous  in  itself,  he  may  without  danger  dis- 
regard it:  so  that,  if  corrupt  or  prejudiced,  he  may 
take  as  his  guide  either  the  true  principles  of  proof  or 
the  previous  wrong  decision,  and  thus  give  judgment 
for  the  plaintiff"  or  for  the  defendant  at  pleasure.  (V) 

84.  But  the  invincible  objection  to  fixed  tribunals, 
— i.e.  fixed  tribunals  entrusted  to  decide  both  law  and 
facts, — exists  in  the  difficulty,  not  to  say  impossibility, 
of  keeping  them  pure,  when  the  questions  at  issue  are 
of  great  weight  and  importance.  The  judge's  name 
being  known  to  the  world,  indicates  to  the  evil-disposed 
litigant  the  person  to  whom  his  bribe  can  be  offered, 
or  on  whose  mind  influence  may  be  brought  to  bear; 
and  a  frightful  temptation  is  held  out  to  the  executive, 
to  secure  the  condemnation  of  political  enemies,  by 
placing  on  the  scat  of  justice  persons  of  complying 
morals  or  timorous  dispositions.  We  commonly  hear 
the  purity  of  the  British  Bench  ascribed  exclusively,  or 
nearly  so,  to  the  statutes  12  &  13  Will.  3,  c.  2,  s.  3,  and 
1  Geo.  3,  c.  23,  which  rendered  judges  irremovable  at 
the  pleasure  of  the  crown  ;  not  remembering  that, 
however  valuable  those  enactments  are  on  many 
grounds,  appointment  to  the  bench  is  as  much  in  the 
hands  of  the  crown  as  ever  it  was  ;  and  that  even  un- 
der the  old  system  men  were  found,  like  Gascoigne, 
Hale,  and  others,  who  defied  the  crown  when  in  the  dis- 
charge of  their  duty.  But  where,  as  among  us,  the 
ultimate  fate  of  every  case  is  pronounced   by  a  body, 

(a)  Inlrod.  §  74. 


GENERA  L     VIE  W.  123 

the  individual  members  of  which  are  unknown  until 
the  moment  of  trial,  all  this  is  removed  ;  and  in  modern 
times  it  is  the  packed  jury,  not  the  corrupt  judge,  which 
upright  citizens  have  to  dread. 

85.  The  description  already  given  of  our  common- 
law  tribunal  shows  it  to  be  one  of  a  compound  nature 
— partly  fixed  and   partly  casual — and  which  will  be 
found  so  constructed,  as  to  secure  very  nearly  all  the 
advantages  of  each  of  the  opposing  systems,  while  it 
avoids  their  characteristic  dangers,  (e)     Our  system, 
by  confiding  to  the  judge  the  decision  of  all  questions 
of  law  and  practice,  secures  the  law  and  the  practice 
from   being  altered   by  any  mistake,  or  even  miscon- 
duct, of  the  jury ;  by  treating  as   matter  of  law,  and 
consequently  within  the  province  of  the  judge,  the  ad- 
missibility of  evidence,  and   the  sufficiency  as  a  legal 
basis  of  adjudication,  of  any  evidence  that  may  be  re- 
ceived, it  prevents  the  jury  from  acting  without  evi- 
dence, or  on    illegal  evidence  ;  and  by  entrusting  the 
judge  with   the  general    oversight   of  the  proceedings 
and  the  duty  of  commenting  upon  the  evidence,  it  ren- 
ders available  his  knowledge  and  experience.     But   by 
taking  out  of  the  hands  of   the   judge   the  actual   deci- 
sion mi  the  facts  and  the  application  of  the  law  in  them, 
it  cuts  up  mechanical   decision  by  the  roots,  prevents 
artificial  systems  of  proof  from  being  formed,  and  se- 
cures the  other  advantages  of  a  casual  tribunal.     Be- 
side ,  the  difference  that  exists  between  the  judge  and 
jury,  in   station,  acquirements,  habits,  and   manner  oi 
viewing  things, not  only  enables  them  to  exert  on  each 
other  a  mutual  and  very  salutary  control,  but  conf 
an   enormous   moral    weight     on    their    joint    action. 
When,  loi  instance,  tli<-  condemnation  of  a  criminal  is 
pronounced,  both  by  tin-  representative  oi  the  law,  and 

(/)  Paley's  Moral  and  Pi  Philosophy,  l>k.  6,  ch.  8. 


124  ENGLISH    LAW   OF   EVIDENCE. 

by  a  number  of  persons  chosen  indifferently  from  the 
body  of  the  community,  the  blow  descends  on  him  and 
the  other  evil-disposed  members  of  it,  with  a  forci 
which  it  never  could  have,  if  based  solely  on  the  reason- 
ing of  the  one,  or  the  consultation  of  the  other.  To 
these  considerations  must  be  added  the  constitutional 
protection  which  the  presence  of  a  jury  affords  to  the 
free  citizen — a  matter  too  well  known  to  need  much 
explanation.  Suffice  it  to  say  that  it  rests  on  the  prin- 
ciple— a  principle  by  no  means  peculiar  to  us  (/") — of 
leaving  a  portion  of  the  judicial  authority  in  the  hands 
of  the  people,  instead  of  vesting  the  whole  in  some  ex- 
clusive or.  professional  body.  Now  it  is  one  of  the 
popular  fallacies  of  the  day — one  which  is  frequently 
put  forward,  and  still  more  frequently  insinuated  by 
the  enemies  of  the  jury  system,  and  too  often  incau- 
tiously admitted  by  its  friends — that  that  constitutional 
protection  is  the  sole  advantage  of  this  mode  of  trial, 
and  that  that  protection  is  required  in  criminal  cases 
only.  The  law  of  England,  however,  as  we  trust  will 
appear  from  what  has  been  already  said,  has  established 
the  trial  by  judge  and  jury,  in  the  conviction  that  it  is 
the  mode  best  calculated  to  ascertain  the  truth,  and  do 
the  greatest  amount  of  justice,  in  every  sense  of  that 
word,  in  the  great  majority  of  cases  ;  the  constitutional 
protection  afforded  by  it  being  only  a  collateral, 
although  most  important,  consequence  of  the  general 
arrangement.  So  obvious  is  this,  that  some  of  those 
who  have  attacked  the  jury  system  in  the  main,  con- 
cede that  it  ought  to  be  retained  in  cases  where  the 
.  liberty  of  the  subject  may  come  in  question,  (g)  But 
who  could  define  beforehand  what  those  cases  are? 
I  he  most  ordinary  case,  criminal  or  civil,  may  disclose 

(/)  See  supra,  §  83,  note  (z).  {g)  Bentham's    Principles    of    Ju- 

dicial  Procedure,  ch.  23,  §  * 


GENERAL     VIEW.  125 

in  its  progress  a  most  important  constitutional  ques- 
tion, wholly  imperceptible  at  its  outset ;  and  we  may 
add,  by  way  of  illustration,  that  two  of  the  most  im- 
portant constitutional  questions  that  ever  presented 
themselves  to  a  tribunal  were  raised,  one  in  a  special 
action  on  the  case,  (Ji)  the  other  in  an  action  lor  libel. 
(7)  "The  distinction,"  says  an  eminent  jurist  of  the 
last  century,  "  between  the  office  of  judge  and  jury 
seems  to  claim  our  utmost  respect.  May  this  wise  dis- 
tribution of  power  between  the  two,  long  continue  to 
llourish,  unspoiled  either  by  the  proud  encroachment 
of  ill-designing  judges,  or  the  wild  presumption  of  licen- 
tious juries."  (/*) 

86.  3.  We  come  to  the  third  great  feature  of  the 
common-law  mode  of  proof — the  general  principles 
by  which  the  admissibility  of  evidence  is  governed. 
And  here  it  is  to  be  observed  that  the  rules  of  evi- 
dence arc  of  three  kinds — 1st.  Those  which  relate  to 
evidence  in  causa,  i.  e.  evidence  adduced  to  prove  the 
questions  in  dispute.  2d.  Those  aiTccting  evidence 
extr&  causam,  or  that  which  is  used  only  to  test  the 
accuracy  of  media  of  proof.  3d.  Rules  of  forensic 
practice  respecting  evidence.  Now  it  is  to  the  first  of 
these  thai  tin-  term  "  rules  of  evidence"  mosl  properly 
applies — -much  evidence  which  would  be  rejected  if 
tendered  in  causa,  being  perfectly  receivable  as  evi- 
dence CXtl  1  'Mi  nil  ;  and  there  are  few  trials  in  which 
this  soit  of  evidence  docs  not  play  an  important  part. 
Again,  the  judge  has  ;i  certain  latitude  allowed  him 
with:  1  to  tin-  rules  ol   forensic  proof.     lie  may 

ask  any  qui   tions  in  any  form,  and  at  any  stage  <>l  the 
cause,  and  to  a  certain  extenl   even  allow  parties  or 

(X)  Ashby  v.  White,  Ld.  Kaym.  938.         (/•)    Margrave's    Co.    I  -it t.    155  h 
(1)  Stockdaic  v.   Hansard,  <j  A.  &      note  5. 
E.  1. 


126  ENGLISH    LAW   OF   EVIDENCE. 

tluii  advocates  to  do  so.  This,  however,  docs  not 
mean  I  hat  he  can  receive  illegal  evidence  at  pleasure; 
foi  if  such  be  left  to  the  jury,  a  new  trial  may  be 
granted,  even  though  the  evidence  were  extracted  by 
questions  put  from  the  bench.  But  it  is  a  power  nec- 
.11  v  to  prevent  justice  being  defeated  by  technical- 
ity, to  secure  indicative  evidence,  (/)  and  in  criminal 
cases  to  assist  in  fixing  the  amount  of  punishment. 
And  it.  should  be  exercised  with  due  discretion.  "  Dis- 
cretio  est  discerncrc  per  legem,  quod  sit  justum":  (m) 
"  In  maxima  potentia  minima  licentia":  (n)  "  Discre- 
tion is  a  science  or  understanding  to  discern  between 
falsity  and  truth,  between  wrong  and  right,  between 
shadows  and  substance,  between  equity  and  colorable- 
glosses  and  pretenses,  and  not  to  do  according  to  theii 
wills  and  private  affections."  (<?) 

87.  Confining  our  attenti  n  therefore  to  evidence 
in  causa — it  was  said  by  a  most  eminent  judge  in  a 
most  important  case,  that  "The  judges  and  sages  of 
the  law  have  laid  it  down  that  there  is  but  one  gen- 
eral rule  of  evidence,  the  best  that  the  nature  of  the 
cate  will  admit."  {  p)  And  Lord  Chief  Baron  Gilbert, 
to  whom  principally  we  arc  indebted  for  reducing  our 
law  of  evidence  into  a  system,  says,  "The  first  and 
most  signal  rule,  in  relation  to  evidence,  is  this,  that  a 
man  must  have  the  utmost  evidence  the  nature  of  the 
fact  is  capable  of;  "  (q)  "  the  true  meaning  of  the  rule 
of  law,  that  requires  the  greatest  evidence  that  the 
nature  of  the  thing  is  capable  of,  is  this:  That  no  such 
evidence  shall   be   brought,  which    ex   natura  rei  sup- 

(/)  For  "indicative"  evidence,  see  Calvin's  Case,  27  a,  and  10  Co.  146  a 

infra.  19    How.    St.    Tr     1089;    4    Bun 

(m)  Co.    I.itt.   227  b;  2   Inst.  56;  4  2539. 

Id.  41  ;  6  o.  B.  700.  (/)  I-ord  Hardwicke,  Ch.,  in  Omy 

(it)   \\<>\>.  159.  chund  v.  I'.arker,  I  Atk.  21,  49. 

{0)  5    Co.    100  a.     See    also    7    Co.,  Uj)  Gilb.  Ev.  4,  4th  ed. 


GENERAL     VIEW.  127 

poses  still  a  greater  evidence  behind,  in.  the  party's 
own  possession  and  power."  (/-)  And  in  another  old 
work  of  authority  :  (s)  "  It  seems  in  regard  to  evidence 
to  be  an  uncontestable  rule,  that  the  party,  who  is  to 
prove  any  fact,  must  do  it  by  the  highest  evidence  of 
which  the  nature  of  the  thing  is  capable."  Similar 
language  is  to  be  found  in  most  of  our  modern  |r 
books.  (/) 

The  important  rule  in  question  has,  however,  been 
very  often  misunderstood  ;  partly  from  the  ambiguous 
nature  of  the  language  in  which  it  is  enunciated,  and 
partly  from  its  being  commonlv  accompanied  by  an 
illustration  which  has  been  confounded  with  the  rule 
itself.  "If,"  says  Lord  Chief  Baron  Gilbert,  (u)  "a 
man  offers  a  copy  of  a  deed  or  will,  where  he  ought 
to  produce  the  original,  this  carries  a  presumption 
with  it,  that  there  is  something  more  in  the  deed  or 
will  that  makes  against  the  party,  or  else  he  would 
nave  produced  it  ;  and  therefore  the  proof  of  a  copy 
in  this  case  is  not  evidence."  This  is  undoubtedly 
true,  but  it  is  a  great  mistake  to  suppose  it  to  be  the 
full  extent  of  the  rule — "  Exempla  illustrant,  non  re- 
st ringunt  legem."  (x)  Sometimes,  again,  it  has  been 
misunderstood,  as  implying  that  the  law  requires  in 
every  1  .i-<-  the  most  convincing  or  creditable  evidence 
which  could  be  produced  under  the  circumstances. 
But  all  the  authorities  agree  that  this  is  not  its  me, til- 
ing; (y)  as  further  appeals  from  the  maxims,  that 
"then-  are  no  degrees  of  parol  evidence,"  ami  "no 
degrees  of  secondary  evidence."  Suppose  an  indict- 
ment for  an  assault:  or,  to  make  the  < :ase  stronger, 

(r)  on;,  .  4th  c<l.  M7.  '4?;    >    Greenl.    Ev.   .'    82    7<h 

I      l         \bv.  1  rid.  I.  Ed.  1736.  cd.,  &c. 

(/)  3  Blackst  Coram.  368;  B.N.  P.  («)  Gilb   I.    t6.  4th  ed. 

393  ;    PeaLc's    Ev.  8  ;  2    Kvans'    Poth.  (x)  Co    I  .  1  .1. 

(y)  Sec  the  authorities  in  not*  \t). 


123  EX  GUSH    LAW    OF    EVIDENCE 

for  wounding  with  intent  to  murder  (an  offense  cap- 
ital until  the  24  <S:  25  Vict.  c.  100,  and  still  punishable 
with  penal  servitude  for  life) :  the  injured  party, 
though  present  in  court,  is  not  called  as  a  witness, 
and  it  is  proposed  to  prove  the  charge  by  the  evidence 
of  a  person  who  witnessed  the  transaction  at  the  dis- 
tance of  a  mile,  or  even  through  a  telescope ;  this  evi- 
dence would  be  admissible,  because  it  is  connected 
with  the  act— the  senses  of  the  witness  having  been 
brought  to  bear  upon  it  ; — and  the  not  producing  what 
would  probably  be  more  satisfactory,  the  evidence  of 
the  party  injured,  is  mere  matter  of  observation  to  be 
addressed  to  the  jury.  Again,  by  "  secondary  evi- 
dence" is  meant  derivative  evidence  of  the  contents  of 
a  written  document ;  and  it  is  a  principle  that  such  is 
not  receivable  unless  the  absence  of  the  "  primary  evi- 
dence," the  document  itself,  is  satisfactorily  accounted 
for.  (2)  But  when  this  has  been  done,  any  form  of 
secondary  evidence  is  receivable,  (a)  Thus,  the  parol 
evidence  of  a  witness  is  admissible  though  there  is  a 
copy  of  the  document,  and  the  probability  that  it 
would  be  more  trustworthy  than  his  memory  is  only 
matter  of  observation.  (6) 

38.  The  true  meaning  of  this  fundamental  prin- 
ciple will  be  best  understood  by  considering  the  three 
chief  applications  of  it.  Evidence,  in  order  to  be  re- 
ceivable,  should  come  through  proper  instruments, 
and  be  in  general  original,  and  proximate.  With  re- 
spect to  the  first  of  these  :  with  the  exception  of  a  few 
matters  which  either  the  law  notices  judicially,  or 
which  are  deemed  too  notorious  to  require  proof,  the 
judge   and   jury  must   not  decide  facts  on  their  per- 

(2)  Infra,  bit.  3,  pt.  2,  cli.  3.  (b)  Doe   d.  Gilbert   v.  Ross,  7  M.  81 

(a)  I  Joe  d.  Gilbert    v.  Ross,  7  M.  &      W.  106,  107. 
W.  T02. 


GENERAL     VIEW.  120 

sonal  knowledge ;  and  they  should  be  in  a  state  of 
legal  ignorance  of  everything  relating  to  the  questions 
in  dispute  before  them,  until  established  by  legal  evi- 
dence, or  legitimate  interference  from  it.  (7)  "  Non 
refert  quid  notum  sit  judici,  si  notum  non  sit  in  forma 
judicii."  (d)  It  is  obvious  that  if  they  were  allowed 
to  decide  on  impressions,  or  on  information  acquired 
elsewhere,  not  only  would  it  be  impossible  for  a 
superior  tribunal,  the  parties,  or  the  public,  to  know 
on  what  grounds  the  decision  proceeded,  but  it  might 
be  founded  on  common  rumor,  or  other  forms  of  evi- 
dence, the  very  worst  instead  of  the  best. 

89.  The  next  branch  of  this  rule  is  that  which  ex- 
acts original  and  rejects  derivative  evidence — that  no 
evidence  shall  be  received  which  shows,  on  its  face, 
that  it  only  derives  its  force  from  some  other  which  is 
withheld.  (*)  "Melius  (or  ' satins')  est  petcre  fontes 
quam  sectari  rivulos."  (f)  The  terms  "primary"  and 
"secondary"  evidence  are  used  by  our  law,  in  the 
limited  sense  of  the  original  and  derivative  evidence 
of  written  documents;  the  latter  of  which  is  receiv- 
able when,  by  credible  testimony,  the  existence  of  the 
primary  source  has  been  established  and  its  absence 
explained.  But  derivative  evidence  of  Other  forms  of 
original  evidence  is  in  general  rejected  absolutely; 
where  supposed  oral  evidence  is  delivered  through 
oral,  and  1  he  various  other  sorts  of  evidence  comprised 
in  practice  under  the  very  inadequate  phrase  "  hearsay 
<  vidence."  ( 

(r)  Infra,  bk.  3.  pt.  1,  eb.  1;  In-  497;   Doe  d,  Gilbert   v              7  Id. 

trod   .'  per  Parke,  B. ;  Macdonnell 

115.  p.  Evans,  ix    C.    B.    930,    943,   pei 

!                      D               livcring  the  Manic,  J. 

•   of  the  court  of  exchequer  (/)  Co.  Litt.  305  b;  S  Co.  116  1> . 

in    Doe  </.  Welsh   v.   Langfield,   MS.  10  Co.  41  a. 

Ilil.  Vac.  1847,  reported  16  M.  &  W.  (g)  Infra,  bk.  3.  I1'-  2.  ^n-  4- 
0 


130  ENGLISH   LAW    OF   EVIDENCE. 

90.  The  remaining  application  of  this  great  prin- 
ciple which  we  propose  to  notice  at  present,  seems 
based  on  the  maxim,  "  In  jure  non  remota  causa,  sed 
proxima  spectatur."  (Ji)  It  may  be  stated  thus,  that, 
as  a  condition  precedent  to  the  admissibility  of  evi- 
dence, either  direct  or  circumstantial,  the  law  requires 
an  open  and  visible  connection  between  the  principal 
and  evidentiary  facts,  whether  they  be  ultimate  or  sub- 
alternate.  This  does  not  mean  a  necessary  connection 
— that  would  exclude  all  presumptive  evidence — but. 
such  as  is  reasonable,  and  not  latent  or  conjectural. 
In  this  our  judicial  evidence  partakes  of  the  very 
essence  of  all  sound  municipal  law,  and  preserves  the 
lives,  liberties,  and  properties  of  men,  by  placing  an 
effectual  rein  on  the  imagination  of  those  entrusted 
with  the  administration  of  justice,  and  preventing 
decision  on  remote  inferences  and  fancied  analo- 
gies, (z) 

91.  The  true  character  and  value  of  the  important 
principle  now  under  consideration,  is,  however,  more 
easily  conceived  than  described.  In  dealing  with 
natural  evidence,  the  connection  between  the  princi- 
pal and  evidentiary  facts  must  be  left  to  instinct  ;  {IS) 
in  legal  evidence  this  is  replaced  by  a  sort  of  legal  in- 
stinct, or  legal  sense,  acquired  by  practice  ;  and  the 
old  observation,  "  Multa  multo  exercitamentis  facilius 
quam  regulis  percipies  "  (/)  becomes  perfectly  appli- 
cable. A  few  instances,  however,  may  serve  to  illus- 
trate. On  a  criminal  trial,  the  confession  of  a  third 
party  not  produced  as  a  witness,  that  he  was  the  real 
criminal,  and  that  the  accused  is  innocent,  although 
c-ertainly   not   destitute    of  natural   weight,   would  be 

(/;)  Bac.  Max.  of   the  Law  Reg.  I  ;  (/)  Introd.  §  38. 

12   East,  652  ;  i.|  M.  &  W.  483  ;  6  B.  {&)  1  Benth.  Jud.  Ev.  44. 

&  S.  881  ;  II.  &  R.  61  ;  18  C.  B.  379;  (/)  4  Inst.  50. 
18  Jur.  962. 


GENERAL     VlEW.  131 

rejected,  from  its  remoteness  and  want  of  connection 
with  the  accused,  and  the  manifest  danger  of  collusion 
and  fabrication.  So,  if  a  man  writes  in  his  pocket- 
book  that  he  owes  me  ^5,  it  is  reasonable  evidence 
against  him  that  he  owes  me  that  sum,  although  it  is 
quite  possible  he  may  be  mistaken.  But  suppose  lie 
were  to  write  in  it  that  I  owe  him  ^5,  that  statement 
though  possibly  quite  true,  is  no  evidence  against  me 
for  the  want  of  connection  is  obvious.  Again,  the 
bad  character  or  reputation  of  an  accused  person, 
although  strong  moral  is  not  legal  evidence  against 
him,  unless  he  sets  up  his  character  as  a  defense  to 
the  charge.  (;//)  The  sound  policy  which  requires 
that  even  the  worst  criminals  shall  receive  a  fair  and 
unprejudiced  trial,  renders  this  rule  indispensable. 
So,  a  man's  appearance  and  physiognomy  are  not 
un frequently  excellent  guides  to  his  character  and 
disposition;  but  they  ought  not  to  be,  and  they  are 
not  receivable  as  legal  evidence  against  him.  (11) 

92.  But  whether  a  given  fact,  bearing  indirectly 
on  a  matter  in  issue,  should  be  received  as  circumstan- 
tial, or  rejected  as  conjectural  evidence,  is  often  a 
question  of  extreme  difficulty.  One  test,  perhaps,  is 
to  <  <»ii  '  ;  :  whether  any  imaginable  number  of  pie, 
of  evidence,  such  as  that  tendered,  could  be  made 
the  ground  of  decision;  for  ii  is  the  property  of  a 
chain  line  circumstantial   evidence,  that,  how- 

ever  inconclu  ive  each    link   is  in  itself,  (he  concur 
rence  of  all  the  links  may  amount   to  proof,  often  of 

the    most  icing    kind.      Suppose,  in   a    1  of 

(hi)  t  very  full]      m-      (7.  e„  india     1  "  la   ma 

14  L>.  J.,  irnie  de  l'a<  1  u  <:.  mi   le  \  Haiti 

M.  e   r  -,  1,   ,,1  qu'il  port  ait. 

llie     I    'i"!i    i  t  en  1  onvenir,  'i'-  ■   in< 

1  1 11  Preuves, 

. 


i;,2  ENGLISH    LAW    OF   EVIDENCE. 

murder  by  a  cutting"  instrument,  no  eye-witness  being 
forthcoming,  the  criminative  facts  against  the  ac- 
cused (o)  were:  I.  He  had  had  a  quarrel  with  the 
deceased  for  a  short  time  previous.  2.  He  had  been 
heard  to  declare  that  he  would  be  revenged  on  the 
deceased.  3.  A  few  days  before  the  murder,  the  ac- 
cused bought  a  sword  or  large  knife,  which  was  found 
near  the  corpse.  4.  Shortly  after  the  murder  he  was 
seen  at  a  short  distance  from  the  spot  and  coming 
away  from  it.  5.  Marks  corresponding  with  the  im- 
pressions made  by  his  shoes  were  traceable  near  the 
body.  6.  Blood  was  found  on  his  person  soon  after 
the  murder.  7.  He  absented  himself  from  his  home 
immediately  after  it.  8.  He  gave  inconsistent  ac- 
counts of  where  he  was  on  the  day  it  took  place. 
The  weakness  of  any  one  of  these  elements,  taken 
singly,  is  obvious,  but  collectively  they  form  a  very 
strong  case  against  the  accused.  Now  suppose,  in- 
stead of  the  above  chain  of  facts,  the  following  evi- 
dence was  offered.  1.  The  accused  was  a  man  of  bad 
character.  2.  He  belonged  to  a  people  notoriously 
reckless  of  human  life,  and  addicted  to  assassination. 
3.  On  a  former  occasion  he  narrowly  escaped  being 
convicted  for  the  murder  of  another  person.  4.  Much 
jealousy  and  ill-feeling  existed  between  his  nation  and 
that  to  which  the  deceased  belonged.  5.  On  the 
same  spot,  a  year  before,  one  of  the  latter  was  mur- 
dered by  one  of  the  former  in  exactly  the  same  way. 
6.  The  murderer  had  also  robbed  the  deceased,  and 
the  accused  was  well  known  to  be  avaricious.  7.  He 
had  been  overheard,  in  his  sleep,  to  use  language  im- 
plying that    he  was   the    murderer.   (/)      8.  All   his 

(«)  This  expression  is  used  in  n  &  (/>)  Infra,  bk.  3,  pt.  2,  ch.  7. 

12  Vict.  c.  46,  §  1  ;  30  &  31   Vict.  c. 
35,  §•  0. 


GEXERAL     VIEW.  133 

neighbors  believed  him  guilty  ;  or,  supposing  the  case 
one  of  public  interest,  both  houses  of  parliament  had 
voted  addresses  to  the  crown  in  which  he  was  assumed 
to  be  the  guilty  party.  These  and  similar  matters, 
however  multiplied,  could  never  generate  that  ra- 
tional conviction  on  which  alone  it  is  safe  to  act ;  and 
accordingly  not  one  of  them  would  be  received  as 
legal  evidence. 

93.  It  may  be  objected,  and,  indeed,  Bentham's 
Treatise  on  Judicial  Evidence  is  founded  on  the 
notion,  that  by  exclusionary  rules  like  the  above, 
much  valuable  evidence  is  wholly  sacrificed,  (q)  Were 
such  even  the  fact,  the  evil  would  be  far  outweighed, 
by  the  reasons  already  assigned  for  imposing  a  limit 
to  the  discretion  of  tribunals,  in  declaring  matters 
proved  or  disproved,  (r)  But  when  the  matter 
comes  to  be  carefully  examined,  it  will  be  found  that 
the  evidence  in  question  need  seldom  be  lost  to 
justice ;  for,  however  dangerous  and  unsatisfactory 
it  would  be  as  the  basis  of  final  adjudication,  it  is 
often  highly  valuable  as  "indicative  evidence"  /.  e.  evi- 
dence not  in  itself  receivable, but  which  is  "indicative" 
of  better.  (/)  Take  the  ease  of  derivative  evidence — 
a  witii'  offers  to  relate  something  told  him  by  A.; 
this  would  be  stopped  by  the  courl  ;  but  he  has  in- 
dicated .1  genuine  source  of  testimony,  A.,  who  may  be 
called,  or  sent  lor.  So,  a  confession  of  guilt  which  has 
been  made  under  promise  of  favor  or  threat  of  pun- 
ishment, is  inadmissible  by  law;  yet  any  facts  dis- 
covered in  consequence  of  that  confession,  such,  foi 
instance,  as  the  finding  of  stolen   property,  are  good 

•      /;;/.  '.  I  II      1      111     l/i      "   Pi  >,(    |u  !l 

and  Introd.  §  3*.  cial   Procedure,   &c."  ch.    [I,  seel 

(s)  The  phrase  "  ir  ■■"  and    3.     In    1 place    h>-    calls    1! 

is  used    in  e  by  Bentham,  1  "  Evidence  <>(  Evidence."    3  Jud.  Et. 

Jtul.  Ev.  37,  and  l>k.  (>,  ch.  11,  sect.  4,  554. 


13-4  ENGLISH    LAW    01     EVIDENCE. 

legal  evidence.  (/)  Again,  no  one  would  think  of 
treating  an  anonymous  letter  as  legal  evidence  against 
a  party  not  suspected  of  being  its  author,  yet  the  sug- 
gestions  contained  in  such  letters  have  oecassionally 
led  to  disclosures  of  importance.  In  tracing  the  per- 
petrators of  crimes,  also,  conjectural  evidence  is  often 
of  the  utmost  importance,  and  leads  to  proofs  of  the 
most  satisfactory  kind,  sometimes  even  amounting  to 
demonstration.  It  is  chiefly,  however,  on  inquisi- 
torial proceedings  —  such  as  coroners'  inquests,  in- 
quiries by  justices  of  the  peace  before  whom  persons 
are  charged  with  offenses,  and  the  like — that  the  use 
of  "  indicative  evidence ''  is  most  apparent :  though 
even  these  tribunals  cannot  act  on  it. 

94.  The  rules  of  evidence  are  in  general  the  same 
in  civil  and  criminal  proceedings ;  (u)  and  bind  alike 
crown  and  subject,  prosecutor  and  accused,  plaintiff 
and  defendant,  counsel  and  client.  There  are,  how- 
ever, some  exceptions.  Thus  the  doctrine  of  estoppel 
has  a  much  larger  operation  in  civil  proceedings,  (x) 
So  an  accused  person  may,  at  least  if  undefended  by 
counsel,  rest  his  defense  on  his  own  unsupported 
statement  of  facts,  and  the  jury  may  weigh  the  credit 
due  to  that  statement ;  (jp)  whereas  in  civil  cases, 
nothing  must  be  opened  to  the  jury  which  it  is  not 
intended  to  substantiate  by  proof,  (z)  Again,  confes- 
sions or  other  self-disserving  statements  of  prisoners, 
will  be  rejected  if  made  under  the  influence  of  undue 


(r)  R.   v.    Lockhart,   2    East,  P.   C.  Simpson,    5    M.   &    W.   309,    312,  per 

658;   R.   v.  Warickshall,   1    Leach,  C.  Parke,  P.;  25   How.  St.  Tr.  1314  ;  29 

L.  263;   R.  v.  Gould,  9  C.  &  P.  364;  Id.  764. 

R.  v.  Griffin,  R.  &  R.  C.  C.  151.  (x)  Infra,  bk.  3,  pt.  2,  ch.  7. 

<;/;   R.  v.    Biirdett,  4    P.   &    A.   95,  ( y)  Infra,  bk.  4.  pt.  1. 

J22.  per  Best,  J.  ;  Attorney-General  v.  (2)  Stevens   v.  Webb,  7  C.  &    P.  60, 

Le   Merchant,  2    T.   R.   201,  n.  ;  R.  v,  61;  Duncombe  v.  Daniell,  8  Id.  222, 

Murphy,  8  C.  &  P.  297,  306  ;  Leacli  v.  227. 


GENERA  L     VIE  W.  135 

promises  of  favor,  or  threats  of  punishment ;  (a)  but 
there  is  no  sueh  rule  respecting  similar  statements  in 
civil  cases.  So,  although  both  these  branches  of  the 
law  have  each  their  peculiar  presumptions,  still  the 
technical  rules  regulating  the  burden  of  proof,  cannot 
be  followed  out  in  all  their  niceties  when  they  press 
against  accused  persons.  (<£) 

95.  But  there  is  a  strong  and  marked' difference 
as  to  the  effect  of  evidence  in  civil  and  criminal  pro- 
ceedings. In  the  former,  a  mere  preponderance  of 
probability,  due  regard  being  had  to  the  burden  of 
proof,  is  a  sufficient  basis  of  decision  ;  (r)  but  in  the 
latter,  especially  when  the  offense  charged  amounts  to 
treason  or  fclonv,  a  much  higher  degree  of  assurance 
is  required.  The  serious  consequences  of  an  errone- 
ous condemnation  both  to  the  accused  and  society, 
the  immeasurably  greater  evils  which  (low  from  it 
than  from  an  erroneous  acquittal,  have  induced  the 
laws  of  even'  wise  and  civilized  nation  to  lay  down 
the  principle,  though  often  lost  sight  of  in  practice, 
that  the  persuasion  of  guilt  ought  to  amount  to  a 
moral  certainty;  (d)  or,  as  an  eminent  judge  cx- 
pressed  it,  "Such  a  moral  certainty  as  convinces  the 
minds  of  the  tribunal  as  reasonable  men,  beyond  all 
reasonable  doubt."  (e)  The  expression  "moral  cer- 
tainty" is  here  used   in  contradistinction  to  physical 


Infra,  bk.  "..  pt.  2,  ch,  7.  above  distinction.     In  civil  ca  1     he  1^ 

(A)  Hub                          Civ.  lib.  22;  sworn  " well  and  truly  to  try  the  issue 

tit.  3,  n.  i'..         e  pei    Lord   Kenyon,  joined    I                         parties,    &c," 

'  .  I  .  in    r                       ,  27   How.  St.  whilst  in  ••                   '  'ti\  In.  "nili  in 

'I  r.  1  thai   he  "    h  '11  well  and  truly  try, 

i..  Plowd.  (12;  I  G           l    .13  a,  true  deliverance    m                     11   our 

7th  ed, ;  Mai  Nally's  Ev.  578 ;  <  1  lady  tin-  queen  and  the  pris- 

v.    Si. I'lc.    '.    I  [o.    I,(i.   '  orn  1  -it  ih 

Will-  .  i.  rke,  B.,  in   K.  v.  Sur- 

((/)  See   tntrod.  ^  49.     The-  juror's  rey  Sum.  Ass.  1543,  MS. 
oath  seems  framed  with  a  view  t<>  the 


136  ENGLISH    LAW    OF    EVIDENCE. 

certainty,  or  certainty  so  called  ;  (_/")  for  the  physical 
possibility  of  the  innocence  of  an  accused  person  can 
never  be  excluded.  Take  the  strongest  case, — a 
number  of  witnesses  of  character  and  reputation,  and 
whose  evidence  is  in  all  respects  consistent,  depose  to 
having  seen  the  accused  do  the  act  with  which  he  is 
charged  ;  still  the  jury  only  believe  his  guilt  on  two 
presumptions/either  or  both  of  which  may  be  falla- 
cious, viz.,  that  the  witnesses  are  neither  deceived 
themselves,  nor  deceiving  them;  (V)  and  the  freest, 
and  fullest  confessions  of  guilt  have  occasionally 
turned  out  untrue.  (Ji)  Even  if  the  jury  were  them- 
selves the  witnesses,  there  would  still  remain  the  ques 
tion  of  the  identity  of  the  person  whom  they  saw  do 
the  deed,  with  the  person  brought  before  them  ac- 
cused of  it ;  (z)  the  identity  of  the  person  is  a  subject 
on  which  many  mistakes  have  been  made.  (Jt)  The 
wise  and  humane  maxims  of  law,  that  it  is  safer  to 
err  in  acquitting  than  condemning,  (/)  and  that  it  is 
better  that  many  guilty  persons  should  escape  than 
one  innocent  person  suffer,  (ni)  are,  however,  often 
perverted  to  justify  the  acquittal  of  persons  of  whose 
guilt  no  reasonable  doubt  could  exist;  and  there 
are  other  maxims  which  should  not  be  forgotten, 
"  Interest  reipublicce  ne  malcficia  remaneant  impu- 
nita,  («)  "  Minatur  innocentes,  qui  parcit  nocenti- 
bus."  (0) 

96.  Again,  the  psychological  question  of  the  in- 
tent with  which   acts  are  done,  plays  a  much  greater 

(/)  Introd.  ;'  6.  (/)  2  Hale,  P.  C.  290. 

{g)  Domat,  Lois   Civ.  pt.   I,  liv.  3,  (m)  2  Hale,   P.  C.   23q  ;  4    Blackst. 

tit.    6,    Preamb.  ;    2    Ev,    Poth,    332  ;  Comm.  358. 

Rose.  Civ.  Ev.  25,  9th  ed.  (n)  Jenk.  Cent.  I,  Cas.  59.    See  also 

(h)  Infra,  bk.  3,  pt.  2,  ch.  7.  4  Co,  45  a. 

(*)  See  M.  49  Hen.  VI.  19  !:.  pi.  26.  (o)  4  Co.  45  a.    See  also  Jenk.  Cent. 

(k)  Infra,  bk.  3,  pt.  2,  ch.  6.  3,  Cas.  54. 


GENERAL     VIEW.  137 

part  in  criminal  than  in  civil  proceedings.1  The  maxim 
"  Actus  non  facit  reum,  nisi  mens  sit  rea,"  (/)  runs 
through  the  criminal  law,  although  in  some  instances 
a  criminal  intention  is  conclusively  presumed  from 
certain  acts ;  (</)  while  in  civil  actions,  to  recover 
damages  for  misconduct  or  neglect,  it  is  in  general  no 
answer  that  the  defendant  did  not  intend  mischief 
(r) — "  Excusat  aut  extenuat  delictum  in  capitalibus, 
quod  non  operatur  idem  in  civilibus."  (s)2  There  are, 
however,  exceptions  to  this ;  and,  whether  an  act  was 
done  knowingly,  often  becomes  an  important  con- 
sideration in  civil  suits.  (/)  It  may  be  laid  down  as  a 
general  principle,  that,  provided  a  man  has  a  right  by 
law  to  do  an  act,  the  intention  with  which  he  does  it 
is  immaterial.  (»)  "  Nullus  videtur  dolo  facere,  qui 
suo   jure    utitur."  (V)3      All    contracts,   likewise,   are 

(p)  Co.   Litt.  247  b;    3   Inst.  107,  Q.   13.   101  ;  Jackson   v.  Sniithson,  15 

4  How.  St.  Tr.  1403;  T.  Raym   423  ;  M.  &  W.  563;  Card   7.  Case,  5   C.  B. 

7  T.  R,  514;  2   I               i;   1   Den.  C.  622;    Hudson     v.    Roberts,     G   Exch. 

C.  389;  5  Jur.  N.  S.  G49.  697;    Worsh    v.   Gilling,    L.    K.,  2  C. 

[g)  Infra,  bk.  3,  pt.  I,  ch.  2.  P.  I. 

(r)  M.  6  Edw.  IV.  7  B.  pi.  i5  ;  Hob.  (it)  Oakcs  v.  Wood,  2  M.  &  W.  791  ; 

134;    T.   Raym.  422;  Willes,  581;  2  Simmons  v.  Lillystone,  8   Exch.  431 ; 

,  104  ;   [6  M.  &  W.  442.  Ridgway  v.  The  Hungerford   Market 

(s)  Bacon,  Max.  Reg.  7.  ipany,  3  A.  8   I  .  171. 

(/)  4   Co.  iS  \>;  May    v.    Burdett,  9  (.<;    Dig.  lib.  50,  t.  17,  1.  55. 

1  The  act  itself  does  not  make  ;i  mini  guilty,  unless  his  in- 
tentions were  so.     Broom,  Leg.  Max.  275. 

2  This  is  one  "I  tin-  Baconian  maxims.  In  capital  case s  the 
law  will  ex<  u  e  or  extenuate  much  that  it  would  severely  visit 
in  civil  cases.  In  capital  ca  es  the  law  will  nut  punish  in  0 
high  a  degree,  ex<  ■  -.-t  the  malii  e  ol  the  will  and  intention  ap- 

ir,  but  in  civil  tre  pas  es  and  injuries  thai  are  oJ  an  inferior 
nature,  the  law  doth  rather  consider  the  damage  ol  the  party 
wronged   than   the   malice  of   him   thai  was  the  wrong-doer 
Bac.  Max.  j ;   Broom,  Leg.  Ma  x ,  29 1 . 

He  is  nol  to  be  esteemed  a  wrong-doer  who  merely  avails 
himsell  of  his  legal   rights.     Dig.    17.  50,  55;    Broom,    L< 
Max.  1  -■  i- 


1 33  ENGLISH    LAW    OF    EVIDENCE. 

founded  on  an  intention  of  the  parties,  either  expressed 
by  themselves  or  implied  by  law  from  circumstances. 

97.  And  here  a  question  presents  itself,  whether 
and  how  far  the  rules, of  evidence  may  be  relaxed  by 
consent  ?  In  criminal  cases,  at  least  in  treason  and 
felony,  it  is  the  duty  of  the  judge  to  see  that  the  ac- 
cused is  condemned  according  to  law ;  and,  the  rules 
of  evidence  forming  part  of  that  law,  no  admissions 
from  him  or  his  counsel  will  be  received.  On  the 
other  hand,  however,  much  latitude  in  putting  ques- 
tions and  making  statements  is  given,  de  facto  if  not 
de  jure,  to  prisoners  who  are  undefended  by  counsel. 
So,  no  consent  could  procure  the  admission  of  evi- 
dence which  public  policy  requires  to  be  excluded ; 
such  as  secrets  of  state  and  the  like.  Moreover, 
no  admission  at  a  trial  will  dispense  with  proof  of  the 
execution  of  certain  attested  instruments,  though  the 
instrument  itself  may  be  admitted  before  the  trial, 
with  the  view  to  save  the  trouble  and  expense  of 
proving  it.  (jy)  Subject,  however,  to  these  and  some 
other  exceptions,  the  general  principles,  "  Ouilibet 
potest  renunciare  juri  pro  se  introducto  "  (z) — "  Omnis 
consensus  tollit  crrorem  "  (a) — seem  to  apply  to  evi- 
dence in  civil  cases  ;  and  much  inadmissible  evidence 
is  constantly  received  in  practice,  because  the  oppos- 
ing counsel  either  deems  it  not  worth  while  to  object 
or  thinks  its  reception  will  be  beneficial  to  his  client. 
It  has,  however,  been  held,  that  where  a  valid  objection 
is  taken  to  the  admissibility  of  evidence,  it  is  discre- 
tionary with  the  judge  whether  he  will  allow  the  ob- 
jection to  be  withdrawn.  (J?) 

98.  Whether   the    rules   respecting  the  incompe 

(y)  Infra,  bk.  3.  p.  2,  ch.  7.  (n)  Co.  Litt.  126  a. 

(z)  Co.   Lilt.  92  a,  166  a,  223  b  ;   10  (b)  IJarbat  v.  Allen,  7  Exch.  609. 

Co.  ioi  a ;  2  Inst.  183  ;  4  Bl.  Com.  316. 


GENERAL     VIEW.  139 

tency  of  witnesses  could  be  dispensed  with  by  consent, 
seems  never  to  have  been  settled.  In  Pedley  v.  Wel- 
lesly,  (c)  Best,  C.  J.,  said  that  Lord  Mansfield  once 
permitted  a  plaintiff  to  be  examined  with  his  own  con- 
sent ;  (d)  and  although  some  of  the  judges  doubted 
the  propriety  of  that  permission,  he  (the  chief  justice) 
thought  it  was  right.  In  Dewdney  v.  Palmer,  (e) 
where,  after  a  witness  had  been  sworn  on  behalf  of  the 
plaintiff,  it  was  proposed  to  show  by  evidence  that  he 
was  the  real  plaintiff,  the  judge  refused  to  allow  this 
course  ;  and  his  ruling  was  affirmed  by  the  court  of 
exchequer,  on  the  ground  that  the  objection  ought 
to  have  been  taken  on  the  voir  dire.  But  in  a 
subsequent  case  of  Jacobs  v.  Layborn,  (/")  the  same 
court,  consisting  of  Lord  Abinger,  C.  B.,  and  Rolfe, 
B.,  overruled  this,  and  held  that  objections  to  com- 
petency might  be  made  at  any  stage  of  the  trial.  (g) 
So,  arbitrators  are  bound  by  the  legal  rules  of  evi- 
dence ;  (7/ )  yet  on  submissions  to  arbitration  previous 
to  the  14  &  15  Vict.  c.  99,  it  was  gene  rally  made  part 
of  the  rule  of  court  that  the  parties  might  be  examined 
as  witnesses.  In  the  ease  already  cited  of  Pedley  v. 
Wellesley,  (z)  a  female  was  called  as  witness  for  the 
plaintiff,  and  it  appeared  that  after  being  served  with 
the  subpoena  she  had  married  the  defendant.  On  her 
evidence  being  obje<  ted  to,  it  was  replied  that  a  party 
t<>  a  suit  1  annbl  by  any  act,  laudable  or  otherwise,  de- 
prive his  adversary  of  the  testimony  of  his  witness; 
bui  Best,  C.  J.,  said  he  should  allow  the  witness  to  be 

3  C.  &  I'.  55?.  (/)  n    M.  &  W.  685.      See,  how- 
referred  to   ia      ever,  the  observations  of  Pa  ke,  !'■..  in 
thought  to  be  Norden  v.  Will  Yardley  v.  Vrnol  I,  i"  M.  &  W.  j 45. 
I  Taunt,     .- - .  1    ■!>!    Mansfield  bi               (,c»     •  r   R.  v.  Whitehead,  35  L.  J., 
put  by  mistake  for    C.  J.    Mai  field.      M.  «  .  1 36. 

per  I'. irk;,  B.,  111  Barbat  v.  Allen,  (//)  Att.-Gen   v.  Davidson,  1   McCI. 

7  Exch.  612.  1     [60 ;  Banks  v.  Banks,  I  Gale,  46 

(/)  4  M.  &  \V.  664.  (1)  3  Car.  &  I\  558. 


HO  ENGLISH    LAW    OF    EVIDENCE. 

examined,  if  the  defendant  consented,  not  otherwise. 
In  a  much  older  cast-,  (/•)  where  it  was  proposed  by  a 
man's  consent  to  examine  his  adversary's  wife  as  a 
witness,  Lord  Hardwicke,  C.  J.,  said,  "The  reason  (/) 
why  the  law  will  not  suffer  a  wife  to  be  a  witness  for 
or  against  her  husband,  is  to  preserve  the  peace  of 
families,  and  there-lore  I  shall  neve!"  encourage  such  a 
consent ;"  and  she  was  not  examined.  Such  evidence 
has  been  rejected  in  America,  on  the  ground  that  the 
interest  of  the  husband  in  preserving  the  confidence 
reposed  in  the  wife  is  not  the  sole  foundation  of  the 
rule  ;  the  public  having  also  an  interest  in  the  pre- 
servation of  domestic  peace,  which  might  be  disturbed 
by  her  testimony  notwithstanding  his  consent,  and 
that  there  is  a  very  great  temptation  to  perjury  in  such 
cases.  (;;/)  To  this  latter  argument  it  may  be  ob- 
served, that  there  is  a  much  greater  temptation  to  per- 
jury, when  an  accomplice  in  a  case  of  treason  or  felony 
is  examined  as  a  witness  against  his  companions;  or 
when  an  heir  apparent  comes  forward  as  a  witness 
for  his  father,  the  title  to  whose  lands  is  in  question. 

99.  All  these  cases  took  place  before  the  14  &  15 
Vict.  c.  99  had  rendered  the  parties  to  a  suit  compe- 
tent witnesses  in  general.  After  the  passing  of  that 
statute,  and  previous  to  the  16  &  17  Vict.  c.  83,  (11) 
the  question  arose  whether  the  wives  of  such  parties 
were  also  rendered  competent ;  which,  after  some  con- 
flict of  opinion,  was  resolved  in  the  negative.  (0)  In 
Barbat  v.  Allen,  (/)   the  plaintiff's  case  having  been 

Ilarker    v.     Dixie,    Ca.    Temp.  against  each  other  in  civil  cases.     See 

Hardw.  264.  infra,  bk.  2,  pt.  i,  ch.  2. 

1  /)  See  on  this  subject,  infra,  bk.  (o)  See  Stapleton  v.  Crofts,  18  Q.  B. 

2,  pt.  1,  ch.  2.  367  ;  Barbat    v.    Allen,   7    Exch.  609, 

{in)  1  Greenl.  Ev.  g  340,  7th  ed.  and    McNeillie    v.    Acton,     17    Jur. 

itt)  Which  rendered    husbands  and  661. 

wives     competent    witnesses     for    or  (/>)  7  Exch.  609. 


GENERAL      VIEW.  141 

proved  by  a  witness,  the  defendants'  counsel  proposed 
to  call  the  wife  of  one  of  the  defendants,  to  prove 
fraud,  by  admissions  of  that  witness,  made  in  her  pres- 
ence. The  plaintiff's  counsel  objected,  and  Pollock, 
C.  B.,  refused  to  admit  her  testimony.  Subsequently 
the  plaintiff's  counsel  offered  to  waive  the  objection  ; 
but  the  judge,  notwithstanding,  refused  to  receive  the 
evidence.  A  verdict  having  been  found  for  the  plain- 
tiff, a  nile  was  granted  to  set  it  aside  on  the  grounds, 
first,  that  the  statute  had  rendered  the  wife  a  compe- 
tent witness  ;  and,  secondly,  that,  if  not,  her  testimony 
ought  to  have  been  received  when  the  objection  was 
waived.  This  rule  having  been  argued,  and  several 
of  the  preceding  cases,  with  some  others,  cited,  the 
court  discharged  it :  holding  unanimously,  that  the 
statute  had  not  rendered  the  wife  competent;  and 
that,  even  supposing  the  objection  could  be  waived 
by  consent,  the  allowing  it  to  be  waived  was  discre- 
tionary with  the  judge.  But  the  members  of  the  court 
were  not  agreed  as  to  whether  the  objection  could  be 
waived  Parke  and  Martin,  BB.,  said  that,  if  it  were 
necessary  to  decide  that  question,  they  would  like 
further  time  for  consideration.  Piatt,  B.,  said  he  was 
of  the  same  opinion  as  Parke,  B.,  and  for  the  same 
reasons.  Pollock,  C.  B.,  however,  delivered  his  judg- 
ment more  at  length,  as  follows: — "In  my  opinion,  a 
judge  is  bound  to  administer  the  whole  law  of  evi- 
dence ;  and  although  a  practice  has  crept  in  of  ad- 
mitting inadmissible  evidence  by  consent,  still  that  is 
d  matter  for  the  discretion  of  the  judge.  The  case! 
which  have  been  adverted  to,  with  reference  to  waiv- 
ing the  objection  to  an  interested  witness,  scarcely 
apply  ;  for,  stri<  1  lv  peaking,  all  objections  to  the  com- 
petency of  a  witness,  on  the-  score  of  interest,  ought 
to    be    taken    on   the  voir  dire,  before   the  witness   is 


i42  ENGLISH    LAW    OF    EVIDENCE. 

sworn.  Therefore,  in  those  cases  where  persons  have 
been  examined  by  consent,  although  they  had  an 
avowed  interest,  it  was  only  going  back  to  the  old 
law ;  and,  after  the  witness  was  sworn,  there  was,  in 
truth,  no  objection  to  waive.  I  think  that  it  is  in  the 
discretion  of  the  judge  whether  he  will  admit  the  evi- 
dence objected  to  ;  otherwise,  if  the  parties  agreed  that 
a  witness  should  give  his  evidence  unsworn,  or  if  a 
person  openly  declared  himself  an  atheist,  I  do  not 
see  why  those  persons  might  not  be  examined.  The 
consent  of  the  parties  will  not  entitle  them  to  use  an 
affidavit  which  is  inadmissible.  Some  additional  light 
may  be  thrown  on  the  subject  by  this  circumstance — 
that  when  parties  are  to  be  examined  in  a  court  of 
law,  under  an  order  of  a  court  of  equity,  the  order  is 
positive  that  the  witnesses  shall  be  examined,  which 
would  be  useless  unless  the  court  had  power  to  reject 
them  notwithstanding  the  consent  of  the  parties.  I 
think  that  the  judge,  in  his  discretion,  has  a  right  to 
insist  on  the  law  of  England  being  administered  ;  and, 
when  any  departure  from  it  is  proposed,  to  say  to  the 
parties,  '  You  shall  not  make  a  law  for  yourselves.'" 
In  a  subsequent  case,  however,  of  I  lodges  v.  Law- 
rence, {q)  where  an  application  by  a  defendant  to  re- 
move a  cause  from  a  county  court  was  resisted,  on  the 
ground  that  the  plaintiff's  principal  witness  was  his 
wife,  and  consequently  he  would  be  deprived  of  her 
testimony  if  the  cause  were  brought  into  a  superior 
court,  the  court  of  exchequer  granted  the  application, 
on  the  defendant's  consenting  that  the  wife  should  be 
examined  as  a  witness. 

100.  We  now  come  to  consider  the  two  other 
remarkable  features  of  the  English  system  of  judi- 
cial   evidence    which    were  mentioned    early  in    this 

(</)  17  Jur.  421. 


GENERAL      VIEW.  143 

Part,  (r)  namely,  the  viva  voce  examination  of  wit- 
nesses, and  the  publicity  of  judicial  proceedings. 
Our  law  of  evidence  bears  a  general  resemblance  to 
other  systems,  in  its  safeguards  or  securities  for  the 
truth  of  testimony — like  them  it  has  its  political  sanc- 
tion of  truth,  an  oath  or  affirmation,  its  legal  forms  of 
preappointed  evidence,  its  rules  as  to  the  incompe- 
tency of  witnesses,  and,  in  a  few  cases,  its  rules  re- 
quiring a  plurality  of  witnesses.  But  of  all  enccks 
on  the  mendacity  and  misrepresentations  of  wit- 
nesses, the  most  effective  is  the  requiring  their  evi- 
dence to  be  given  viva  voce,  in  presence  of  the  party 
against  whom  they  are  produced,  who  is  allowed  to 
"  cross-examine  "  them,  i.  ^.,to  ask  them  such  questions 
as  he  thinks  may  serve  his  cause.  The  great  tests 
of  the  truth  of  any  narrative  are  the  consistency  of 
its  several  parts,  and  the  possibility  and  probability  of 
the  matters  narrated,  (s)  Stories  false  in  toto  are 
comparatively  rare  (t) — it  is  by  misrepresentation, 
suppression  of  some  matters,  and  addition  of  others, 
thai  a  false  coloring  is  given  to  things  ;  and  it  is  only 
by  a  searching  inquiry  into  the  surrounding  circum- 
stances, that  the  whole  truth  can  be  brought  to  light. 
Now,  although  much  valuable  evidence  is  often  elic- 
ited by  questions  put  from  the  tribunal,  and  although 
thi  told  by  a  witness  frequently  discloses,  of  it- 

'!.  some  inconsi  tency  or  improbability  fatal  to  the 
whole,  ii  is  1  hiefly  from  the  party  against  whom  false 
liniony  is  directed, thai  we  can  expect  to  obtain 
the  most  efficienl  materials  for  its  detection.  He, 
above  all  others, is  interested  in  exposing  it,  and  is  the 
person  besl  acqauinted,  often  the  only  person  ac- 
quainted with  the  facts  as  they  have  really  occurred, 
B<  as  the   answer  to    one  question    frequently 

(r)  Supra,  §  80.  Introd.  §  24.  (/)  Id.  §  26 


144  ENGLISH    LAW    OF    EVIDENCE. 

suggests  another,  it  is  extremely  difficult  for  a  menda- 
cious witness  to  come  prepared  with  his  story,  ready 
fitted  to  meet  any  question  which  may  be  thus  put  to 
him  on  a  sudden.  (?/)  The  other  great  check  is  the 
publicity  of  our  judicial  proceedings — our  courts  of 
justice  being  open  to  all  persons ;  and  in  criminal 
cases,  the  by-standers  are  even  invited,  by  proclama- 
tion, to  come  forward  with  any  evidence  they  may 
possess  affecting  the  accused.  The  advantages  of  this 
are  immense.  "  In  manv  cases,"  observes  an  author 
who  is  amply  quoted  in  the  present  work,  (x)  "say 
rather  in  most  (in  all  except  those  in  which  a  witness, 
bent  upon  mendacity,  can  make  sure  of  being  ap- 
prised, with  perfect  certainty,  of  every  person  to  whom 
it  can  by  any  possibility  have  happened  to  be  able  to 
give  contradiction  to  any  of  his  proposed  statements)., 
the  publicity  of  the  examination  or  deposition  op- 
erates as  a  check  upon  mendacity  and  incorrectness. 
.  .  .  .  Environed,  as  he  sees  himself,  by  a  thou- 
sand eyes,  contradiction,  should  he  hazard  a  false 
tale,  will  seem  ready  to  rise  up  in  opposition  to  him 
from  a  thousand  tongues  ;  many  a  known  face,  and 
every  unknown  one,  presents  to  him  a  possible  source 
of  detection,  from  whence  the  truth  he  is  struggling 
to  suppress,  may,  through  some  unsuspected  channel, 
burst  forth  to  his  confusion. 

The  practice  of  the  civil  (y)  and  canon  laws,  as  is 

(//)  The  advantages  of  the  common-  (y)  By  the  civil  law  we  mean  that 

law  mode  of  interrogating  witnesses,  form  of  Roman   law  which,  during  so 

as  compared  with  that  made  use  of  in  many  centuries,  prevailed  on  the  con- 

the  civil  and  canon  laws,  and  formerly  tinent  of  Europe.    The  practice  of  the 

in  our  ecclesiastical  and  equity  courts,  ancient  Romans  in  a  great  degree  re- 

&c,  are  ably  shown  by  Bentham,  in  sembled  our  own.     See  Acts,  xxv.  16 ; 

the  3rd  book  of  his  Judicial  Evidence.  Dig.  lib.   22,  tit.  5.  1.  3.    gij   3   and    4; 

[x)  1  Benth.  Jud.  Ev.552.    Sec  that  Quintilian,  Inst.  Orat.  lib.  5,  c.  7,  and 

work,  bk.  2.  ch.  10,  sect.  2,  where  the  Devotus,  Inst.   Canon,   vol.   2,  lib.  3, 

advantages  of  the  publicity  of  judicial  tit.  ix.  §^  17  and  18,  5th  ed. 
proceedings  are  very  clearly  pointed  out. 


GENERAL     VIEW.  145 

well  known,  differs  wholly  from  ours  in  these  respects. 
Witnesses  are  examined  in  private  by  a  judge  or  of- 
ficer of  the  court,  and  their  depositions,  reduced  into 
form,  are  transmitted  to  the  tribunal  by  which  the 
cause  is  to  be  tried.  And,  absurd  as  this  may  seem,  it 
is  not  without  its  defenders,  who  condemn  our  com- 
mon-law system  altogether,  and  contend  that  secrecy 
and  written  deposition  constitute  the  very  essence  of 
justice.  All  their  arguments,  however,  when  exam- 
ined, come  to  this,  that  it  is  wise  to  sacrifice  certain 
and  constant  good,  in  order  to  avoid  occasional  and 
exceptional  evil.  Where,  say  they,  witnesses  are 
called  on  to  explain  their  answers,  and  one  question  is 
followed  up  by  another,  a  false  witness  may  adapt  his 
answers  to  circumstances;  therefore,  let  every  witness 
who  happens  to  be  misunderstood — all  men  arc  not 
masters  of  language,  and  in  the  hands  of  the  ablest  of 
us  it  often  fails  to  communicate  our  thoughts — be  de- 
prived  of  the  opportunity  of  setting  himself  right 
with  his  interrogator  and  the  tribunal.  Again,  an 
honest,  but  timid,  or  weak-mind*  d,  witness  may  be  so 
affected  by  the  novelty  of  his  situation,  or  so  brow- 
beaten by  his  cross-examiner,  as  to  be  unable  to  give 
I'l' nee,  or  he  may,  perhaps,  be  made  even  to  contra- 
diet,  himself;  therefore,  say  the  partisans  of  tin;  civil 
and  canon  law  practice,  let  the  feeling  of  shame  that 
so  often  deters  men  from  stating  in  public,  falsehoods 
which  they  would  unblushingly  state  in  private,  be 
I  from  the  minds  of  all  witnesses  who  present 
themselves  in  courts  of  justice;  and  let  us  shut  ou1 
the  in'  al<  ulabie  light  thrown  on  every  sorl  of  verbal 
1  stimony  by  the  demeanor  of  the  person  who  gi\ 
it  The  most  limited  experience  will  testify,  that 
whal  .1  man  says  is  often  of  very  small  account,  in- 
deed, compared  with  his  manner  of  saying  it.  Be- 
1  i. 


146  ENGLISH   LAW    OF  EVIDENCE, 

sides,  when  justice  is  defeated  by  cross-examination 
pushed  to  excess,  the  chief  fault  rests  with  the  judge, 
whose  duty  it  is  to  re-assure  and  encourage  the  wit- 
ness. And,  after  all.  brow-beating-  and  annoying  a 
witness  are  very  different  from  discrediting  him.  We 
should  remember  that  the  cross-examination  takes 
place  in  presence  of  a  judge  and  jury,  who  are  on  the 
watch  to  discover  whether  the  confusion  or  vacillation 
of  the  witness  is  attributable  to  false  shame,  mistake, 
or  mendacity.  Most  of  the  advantages  of  secret 
examination,  without  its  dangers,  are  attainable  by 
examining  the  witnesses  out  of  the  hearing  of  each 
other — a  practice  constantly  adopted  in  courts  of 
common  law,  when  combination  among  them  is  sus- 
pected, or  the  testimony  of  one  is  likely  to  exercise  a 
dangerous  influence  over  others. 

1 01.  But,  however  valuable  the  principle  which 
requires  the  presence  of  witnesses  at  a  trial,  the  strict 
enforcement  of  the  rule,  under  all  circumstances, 
would  be  an  impediment  to  justice.  Either  from  the 
evils  of  an  unbending  adherence  to  it  being  less  felt 
in  early  times,  or  from  the  comparatively  slender  at- 
tention paid  to  evidence  in  general  by  our  ancient 
lawyers,  certain  it  is  that  the  common  law  made  little 
or  no  provision  on  this  subject;  but  large  improve- 
ments have  been  effected  by  modern  legislation. 
After  the  union  with  Scotland  and  the  complete  es- 
tablishment of  our  Indian  empire,  the  mischiefs  aris- 
ing out  of  the  imperfections  of  the  ancient  system 
became  too  great  to  be  overlooked  ;  and  the  13  Geo.  3, 
c.  63,  contains  several  provisions  directed  to  this  ob- 
ject. In  the  first  place,  it  enacts,  {£)  that  "  in  all 
cases  of  indictments  or  informations,  laid  or  exhi- 
bited in  the  Court  of  King's  Bench,  for  misdemeanors 

(z)  Sect.  40. 


GENERAL     VIEW.  147 

or  offenses  committed  in  India.it  shall  be  lawful  for 
his  Majesty's  said  court,  upon  motion  to  be  made  on 
behalf  of  the  prosecutor,  or  of  the  defendant  or  de- 
fendants, to  award  a  writ  of  mandamus,  requiring  the 
chief  justice  and  judges  of  the  supreme  court  of 
judicature  for  the  time  being,  or  the  judges  of  the 
Mayor's  Court  at  Madras,  Bombay,  or  Bencoolen,  as 
the  case  may  require,  who  are  hereby  respectively 
authorized  and  required  accordingly,  to  hold  a  court 
with  all  convenient  speed,  for  the  examination  of  wit- 
nesses, and  receiving  other  proofs  concerning  the  mat- 
ters charged  in  such  indictments  or  informations 
respectively  ;  and,  in  the  meantime,  to  cause  such 
public  notice  to  be  given  of  the  holding  of  the  said 
court,  and  to  issue  such  summons  or  other  process,  as 
may  be  requisite,  for  the  attendance  of  witnesses, 
and  of  the  agents  or  counsel,  of  all  or  any  of  the 
parties  respectively,  and  to  adjourn,  from  time  to 
time,  as  occasion  may  require  :  and  such  examina- 
tion as  aforesaid  shall  be  then  and  there  openly  and 
publicly  taken  viva  voce  in  the  said  court,  upon  the 
n  pective  oaths  of  witnesses,  and  the  oaths  of  skillful 
interpreters,  administered  according  to  the  forms  of 
their  several  religions;  and  shall,  by  some  sworn 
officer  "l  uch  court,  be  reduced  into  one  or  m 
writing  or  writings  on  parchment,  &c,  and  shall  be 
sent  to  his  Majesty,  in  his  Couii  of  King's  Bench, 
closed  up,  and  under  the  seals  of  two  or  more  of  the 
judges  of  the  said  court,  and  one  or  more  of  the  said 
judges  shall  deliver  the  same  to  the  agen!  or  agents 
of  the  party  or  parties  requiring  the  same  ;  which  said 
agent  01  agents  (or  in  1  of  his  or  their  death,  the 
person  into  whose  hands  the  same  shall  come)  shall 
deliver  the  sane- to  one  of  the  clerks  in  coun  ol  his 
Majesty's  Court  of  King's  Bench,  in  the  public  office 


i48  ENGLISH    LAW    OF    EVIDENCE. 

and  make  oath  that  he  received  the  same  from  the 
hands  of  one  or  more  of  the  judges  of  such  court  in 
India,  &c.;  and  such  depositions,  being  duly  taken  and 
returned,  according  to  the  true  and  intent  meaning  of 
this  act,  shall  be  allowed  and  read,  and  shall  be  deemed 
as  good  and  competent  evidence  as  if  such  witness  had 
been  present,  and  sworn  and  examined  viva  voce  at 
any  trial  for  such  crimes  or  misdemeanors,  as  aforesaid, 
in  his  Majesty's  said  Court  of  King's  Bench,  any  law 
or  usage  to  the  contrary  notwithstanding ;  and  all 
parties  concerned  shall  be  entitled  to  take  copies  of 
such  depositions  at  their  own  costs  and  charges."  And 
by  a  subsequent  section,  (a)  "  when  any  person  whatso- 
ever shall  commence  and  prosecute  any  action  or  suit, 
in  law  or  equity,  for  which  cause  hath  arisen,  or 
shall  hereafter  arise  in  India  against  any  other  person 
whatever,  in  any  of  his  Majesty's  courts  at  Westmin- 
ster, it  shall  and  may  be  lawful  for  such  courts 
respectively,  upon  motion  there  to  be  made,  to  pro- 
vide and  award  such  writ  or  writs  in  the  nature  of  a 
mandamus  or  commission,  as  aforesaid,  to  the  chief 
justice  and  judges  of  the  said  supreme  court  of  judica- 
ture for  the  time  being,  or  the  judges  of  the  Mayor's 
Court  at  Madras,  Bombay,  or  Bencoolen,  as  the  case 
may  require,  for  the  examination  of  witnesses,  as  afore- 
said; and  such  examination,  being  duly  returned,  shall 
be  allowed  and  read,  and  shall  be  deemed  good  and 
competent  evidence,  at  any  trial  or  hearing  between 
the  parties  in  such  cause  or  action,  in  the  same  man- 
ner, in  all  respects,  as  if  the  several  directions  herein- 
before prescribed  and  enacted  in  that  behalf  were 
again  repeated."  Another  section  (6)  contains  a  pro- 
viso, that  "  no  such  depositions,  taken  and  returned  as 
aforesaid    by  virtue   of  this  act,  shall   be  allowed   or 

(a)  Sect.  44.  {b)  Sect.  45. 


GENERAL      VIEW.  149 

permitted  to  be  given  in  evidence  in  any  capital  cases 
other  than  such  as  shall  be  proceeded  against  in  Parlia- 
ment." 

102.  This  statute,  it  is  obvious,  went  but  a  short 
way  towards  remedying  the  evil :  and  several  others 
with  similiar  provisions  ; — as,  for  instance,  the  42  Geo. 
3,  c.  85,  and  1  Geo.  4,  c.  101 — were  passed  from  time 
to  time,  to  meet  the  exigencies  of  certain  classes  of 
cases.  Nothing  effectual  was  done,  however,  until  the 
1  VVil.  4,  c.  22,  entitled  "An  act  to  enable  Courts  of 
Law  to  order  the  Examination  of  Witnesses  upon 
Interrogatories  and  otherwise."  The  first  section 
enacts,  that  all  and  every  the  powers,  authorities,  pro- 
visions and  matters  contained  in  the  13  Geo.  3,  c.  63, 
relating  to  the  examination  of  witnesses  in  India,  shall 
be  extended  to  all  colonies,  islands,  plantations  and 
places  under  the  dominion  of  his  Majesty  in  foreign 
parts,  and  to  the  judges  of  the  several  courts  therein, 
and  to  all  actions  depending  in  any  of  his  Majesty's 
courts  of  law  at  Westminster,  in  what  place  or  coun- 
try soever  the  cause  of  action  may  have  arisen,  and 
whether  the  same  may  have:  arisen  within  the  jurisdic- 
tion of  the  court  to  the  judges  whereof  the  writ  or 
commission  may  be  directed,   or   elsewhere,  when  it 

ill  appear  thai  the  examination  of  witnesses  under 
a  writ  or  commission  issued  in  pursuance  of  the  au- 
thority thereby  given,  will  be  necessary  or  condu- 
cive to  the  due-  administration  of  justice,  in  the  matter 
wherein  sueh  writ  shall  be  applied  for. 

103.  The  1  Will.  J,  c.  22,  contained,  however, 
other  provisions  more  importaril  and  extensive  than 
this,  h  empowered  (c)  each  of  the  courts  a1  West- 
minister, and  also  the  Courl  of  Common  Pleas  of  the 

ounty  palatine  ol    Lancaster,  and  the  Court  of  Pleas 

(O  '     1- 


150  ENGLISH    LAW    OF    EVIDENCE. 

of  the  county  palatine  of  Durham,  and  the  several 
judges  thereof,  in  every  action  depending  in  such 
court,  upon  the  application  of  any  of  the  parties  to 
such  suit,  to  order  the  examination  on  oath,  upon  in- 
terrogatories or  otherwise,  before  the  master  or  pro- 
thonotary  of  the  said  court,  or  other  person  or  per- 
sons to  be  named  in  such  order,  of  any  witnesses 
within  the  jurisdiction  of  the  court  where  the  action 
shall  be  depending,  or  to  order  a  commission  to  issue 
for  the  examination  of  witnesses  on  oath  at  any  place 
or  places  out  of  such  jurisdiction,  by  interrogatories 
or  otherwise,  and  by  the  same  or  any  subsequent  or- 
der or  orders,  to  give  all  such  directions  touching  the 
time,  place  and  manner  of  such  examination,  as  well 
within  the  jurisdiction  of  the  court  wherein  the  action 
shall  be  depending  as  without,  and  all  other  matters 
and  circumstances  connected  with  such  examinations, 
as  might  appear  reasonable  and  just.  (V)  Also,  (e) 
that  "  when  any  rule  or  order  shall  be  made,  for  the 
examination  of  witnesses  within  the  jurisdiction  of 
the  court  wherein  the  action  shall  be  depending,  by 
authority  of  this  act,  it  shall  be  lawful  for  the  court,  or 
any  judge  thereof,  in  and  by  the  first  rule  or  order  to 
be  made  in  the  matter,  or  any  subsequent  rule  or  or- 
der, to  command  the  attendance  of  any  person  to  be 
named  in  such  rule  or  order  for  the  purpose  of  being 
examined,  or  the  production  of  any  writings  or  other 
docum<  n;  3  to  be  mentioned  in  such  rule  or  order,  and 
to  direct  the  attendance  of  any  such  person  to  be  at  his 
own  place  ol  abode,  or  elsewhere,  if  necessary  or  con- 

(d ')   In     applying    this    section,    the  its   execution,  they  may  disallow   any 

court  may  disallow  any  interrogatories  cross-interrogatories  which   they   may 

which,  in  their  opinion,  might  deter  a  think     to    be    improper.      Stocks    v 

;vitne-»  from   giving  >  Ellis,  L   Rep.,  S  Q.  V>.  454. 
the  commissioners  ;    or,   after  a  com-  (e)  Sect.  5. 

mission   ha-  been  granted,  and   before 


GENERAL     VIEW.  151 

v^nient  so  to  do  :  and  the  willful  disobedience  of  any 
sjch  rule  or  order  shall  be  deemed  a  contempt  of 
court,  and  proceedings  may  be  thereupon  had  by  at- 
tachment, &c. ;  provided  that  no  person  shall  be  com- 
pelled to  produce,  under  any  such  rule  or  order,  any 
writing  or  other  document  that  he  would  not  be 
compellable  to  produce  at  a  trial  of  the  cause."  The 
examination  is  directed  to  be  on  oath,  or  affirmation 
in  cases  where  the  law  allows  an  affirmation  ;  and  per- 
sons giving  false  evidence  are  to  be  deemed  guilty  of 
perjury.  (/")  But,  lest  the  power  of  examining  wit- 
nesses in  this  way  should  be  perverted,  to  the  superse- 
ding of  the  salutary  practice  of  the  common  law7,  it 
is  enacted,  (g)  that  "  no  examination  or  deposition,  to 
be  taken  by  virtue  of  that  act,  shall  be  read  in  evi- 
dence at  any  trial  without  the  consent  of  the  party 
against  whom  the  same  may  be  offered,  unless  it  shall 
appear  to  the  satisfaction  of  the  judge,  that  the  ex- 
aminant  or  deponent  is  beyond  the  jurisdiction  of 
the  court,  or  dead,  or  unable  from  permanent  sickness 
or  other  p  xmanent  infirmity  to  attend  the  trial." 

104.  Still  further  improvements  in  this  respect 
were  effected  by  the  6  &  7  Vict.  c.  82,  which  pro- 
vided means  for  compelling  the  attendance  of  persons, 
lo  be  examined  under  commissions  lor  1  he  examina- 
tion o\  witnesses,  &c,  which  were  to  be  exe  uted  in 
pari  i  of  the  realm,  subjeel  to  different  laws  from  those 
in  which  the  commissions  were  issued;  and  by  the 
22  Viet.  e.  20,  which  provided  for  taking  evidence  in 
suits  and  proceedings  before  tribunals  in  the  Queen's 
dominions,  in  places  out  of  the  jurisdiction  of  those 
tribunals.  Again  ,  by  the  2:  &  23  Vict.  c.  21,  s.  16, 
the  above  provisions  of  the  [3  Geo.  3,  c.  63,  and  the 
1  Will.  4,  c.  22,  were  extended   to  all  s  tits  and  pro- 

(J  )  Sect.  ;■  i". 


152  ENGLISH    LAW    OF   EVIDENCE. 

feedings  on  the  revenue  side  of   the  Court  of    Ex- 
el  lcuucr. 

And  now,  by  the  "  supreme  court  of  judicature  act 
l$73"  W  "  At  the  trial  of  any  cause,  or  at  any  assess- 
ment of  damages,"  "  the  court  or  a  judge  may,  at  any 
time,  for  sufficient  reason,  order  that  any  particular 
fact  01  facts  may  be  proved  by  affidavit,  or  that  the 
affidavit  of  any  witness  may  be  read  at  the  hearing  or 
trial,  on  such  conditions  as  the  court  or  judge  may 
think  reasonable:  or  that  any  witness,  whose  attend- 
ance in  court  ought  for  some  sufficient  cause  to  be 
dispensed  with,  be  examined  by  interrogatories  or. 
otherwise,  before  a  commissioner  or  examiner ;  pro- 
vided, that  when  it  appears  to  the  court  or  judge,  that 
the  other  party  bona  fide  desires  the  production  of  a 
witness  for  cross-examination,  and  that  such  witness 
can  be  produced,  an  order  shall  not  be  made,  authoriz- 
ing the  evidence  of  such  witness  to  be  given  by 
affidavit." 

105.  The  old  statutes  1  &  2  P.  &  M.  c.  13,5.4, 
and  2  &  3  P.  &  M.  c.  10,  s.  2,  enacted,  that  justices 
of  the  peace,  before  whom  persons  where  brought 
charged  with  felony,  should,  before  committing  to 
prison  or  admitting  to  bail,  take  the  examination  ot 
the  prisoner,  and  information  of  those  that  brought 
him,  of  the  fact  and  circumstances  thereof;  and  the 
same,  or  so  much  thereof  as  should  be  material  to 
prove  the  felony,  should  put  in  writing,  &c.  These 
statutes  were  repealed,  re-enacted,  and  their  provi- 
sions extended  to  cases  of  misdemeanor,  by  7  Geo.  4. 
c.  64,  ss.  2,  3.  And  this  latter  enactment  was  in  its 
turn  repealed  and  amended  by  11  &  1 2  Vict.  c.  42  ■ 
which  enacts,  (z  )  that  where  witnesses  are  examined 
on    oath    or    affirmation,    against    a    person     charged 

(A)  36  &  37  Vict.  c.  66,  Sched.     Rule  36.  (*)  Sect.  17. 


GENERAL     VIEW.  153 

before  a  justice  of  the  peace  with  any  indictable 
offense,  and  their  evidence  has  been  put  into  writing, 
and  their  depositions  read  over  to,  and  signed  re- 
spectively by  them  and  the  justice  taking  the  same, 
"  If  upon  the  trial  of  the  person  so  accused  it  shall  be 
proved,  by  the  oath  or  affirmation  of  any  credible 
witness,  that  any  person  whose  deposition  shall  have 
been  so  taken  as  aforesaid  is  dead,  or  so  ill  as  not  to 
be  able  to  travel,  (Jc)  and  if  also  it  be  proved  that 
such  deposition  was  taken  in  the  presence  of  the  per- 
son so  accused,  and  that  he  or  his  counsel  or  attorney 
had  a  full  opportunity  of  cross-examining  the  witness, 
then,  if  such  deposition  purport  to  be  signed  by  the 
justice  by  or  before  whom  the  same  purports  to  have 
been  taken,  it  shall  be  lawful  to  read  such  deposition  as 
evidence  in  such  prosecution,  without  further  proof 
thereof,  unless  it  shall  be  proved  that  such  deposition 
was  not  in  fact  signed  by  the  justice  purporting  to 
sign  the  same."  The  1  &  2  P.  &  M.  c.  13,  s.  5,  and  7 
Geo.  4,  c.  64,  s.  4,  give  somewhat  similar  directions  to 
coroners  holding  inquisitions  of  murder  -or  man- 
slaughter; and  the  merchant  shipping  act,  17  &  18 
Vict.  c.  104,  s.  270,  has  some  provisions  of  a  like 
nai  ure  for  offenses  under  that  act. 

106.  Nor  is  it  exclusively  on  witnesses  that  this 
institution  of  publicity  exercises  a  salutary  control. 
[tseffeel  on  the  judge  is  no  less  conspicuous.  "  Upon 
his  moral  fai  ulties,"  observes  Bentham,  (/  )  "  ii  acts  as 
a  check,  restraining  him  from  active  partiality  and 
improbity  in  every  shape:  upon  his  intellectual  facul- 
ties it  a<  ts  as  a  spur,  urging  him  to  that  habit  of  Unre- 
al A  .11  ■■■■■  lion  that,  owing  to  the  sufficient  a  ground  within  thi 
oM  age  and  nei  m  to  b<   read. 

ness,    his    b<  i  mined    1  l  I  .  I  •    I.,  M  ■  ' '   ')A- 

might  1)'  attended  with  danger,  is  not  II  v.  523-5. 


154  ENGLISH    LAW    OF   EVIDENCE. 

mitting  exertion,  without  which  his  attention  can 
never  be  kept  up  to  the  pitch  of  his  duty.  Without 
any  addition  to  the  mass  of  delay,  vexation,  and  ex- 
pense, it  keeps  the  judge  himself,  while  trying,  under 
trial.  Under  the  auspices  of  publicity,  the  original 
cause  in  the  court  of  law,  and  the  appeal  to  the  court 
of  public  opinion,  are  going  on  at  the  same  time.  So 
many  by-standers  as  an  unrighteous  judge  (or  rather 
a  judge  who  would  otherwise  have  been  unrighteous) 
beholds  attending  in  his  court,  so  many  witnesses  he 
sees  of  his  unrighteousness  ;  so  many  ready  execu- 
tioners, so  many  industrious  proclaimers,  of  his  sen- 
tence. On  the  other  hand,  suppose  the  proceedings 
to  be  completely  secret,  and  the  court,  on  the  occasion, 
to  consist  of  no  more  than  a  single  judge, — that 
judge  will  be  at  once  indolent  and  arbitrary  :  how 
corrupt  soever  his  inclination  may  be,  it  will  find  no 
check,  at  any  rate  no  tolerably  efficient  check,  to 
oppose  it.  .  .  .  Publicity  is  further  useful,  as  a 
security  for  the  reputation  of  the  judge  (if  blameless) 
against  the  imputation  of  having  misconceived,  or,  as 
if  on  pretense  of  misconception,  falsified  the  evi- 
dence. Withhold  this  safeguard,  the  reputation  of 
the  judge  remains  a  perpetual  prey  to  calumny,  with- 
out the  possibility  of  defense.  .  .  .  Another  ad- 
vantage (collateral  indeed  to  the  present  object,  yet 
too  extensively  important  to  be  passed  over  without 
notice)  is,  that,  by  publicity,  the  temple  of  justice 
adds  to  its  other  functions  that  of  a  school :  a  school 
of  the  highest  order,  where  the  most  important 
branches  of  morality  are  enforced  by  the  most  im- 
pressive means  ;  a  theatre,  in  which  the  sports  of  the 
imagination  give  place  to  the  more  interesting  exhib- 
itions pf  real  life.  Sent  thither  by  the  self-regarding 
motive  of  curiosity,  men  imbibe,  without  intending  it 


GENERAL     VIEW.  155 

and  without  being  aware  of  it,  a  disposition  to  be 
influenced,  more  or  less,  by  the  social  and  tutelary 
motive,  the  love  of  justice." 

107.  There  are  few  things,  however  excellent  in 
themselves,  the  value  of  which  may  not  be  overrated  ; 
and  certainly  the  publicity  of  legal  proceedings  is  not 
one  of  them.  Not  only  are  there  certain  cases  for 
which  privacy  either  total  or  partial  is  advisable,  but 
Bentham  overrates  the  principle  of  publicity  when  he 
proposes  to  entrust  the  decision  of  all  questions,  both 
of  law  and  fact,  to  a  judge  ;  relying  on  the  publicity 
of  the  proceedings,  accompanied  by  ample  recorda- 
tion or  notation  of  the  evidence,  and  appeal  to  a 
superior  tribunal,  as  sufficient  checks  upon  his  con- 
duct. Following  up  this  view  he  condemns  juries  in 
his  treatise  on  judicial  evidence ;  (m)  though  in 
other  parts  of  the  same  work  he  bears  unconscious 
testimony  to  their  value;  («)  and  in  his  principles 
of  judicial  procedure  (0)  he  admits  that  they  ought 
not  to  be  abolished  in  cases  where  the  liberty  of  the 
subject  is  involved.  There  is  not  the  slightest  pretense 
for  saying  that  any  one  of  these  three  cheeks  would, 
standing  by  itself,  attain  the  desired  object.  First, 
with  respect  to  recordation  or  notation  of  the  evi- 
dence, in  other  words,  the  security  afforded  by  writing. 
If  the  evidence  is  to  be  taken  down  verbatim  it 
would  add  <  normously  to  the  expense  of  trials;  if 
only  minutes  of  it  are  to  be  made,  the  whole  ease 
does  nol  come  before  the  appellate  tribunal;  and  in 
either  case  the  sources  of  mischief  which  are  to  be 
f.mnd  in  the  ignorance,  the  laziness,  the  complais- 
ance, and  even  the  corruption  of  the  notary,  scribe, 
greffier,  or  whatever  else  he  maybe  called,  are  not  to 

(m)    2  Jud.    Ev.   285,   236;    4    1  '•  '">  See  l  [d.  351  ;   1  M.  58-- 

II.  333.  331 ;  5  Id.  531-  (°)  ChaP-  2~'.  8  '■ 


[56  ENGLISH    LAW    OF    EVIDENCE. 

be  overlooked.  Secondly,  as  to  appeal, — appeal  to  a 
superior  tribunal  on  mere  facts,  or  combinations  of  law 
and  fact,  is,  when  considered  in  se,  of  all  checks  on 
misdecision  the  most  illusory,  and  of  all  encourage- 
ments to  vexatious  litigation  the  greatest.  Through 
the  mass  of  allegation,  argument  and  evidence  it  is 
sometimes  almost  impossible  to  ascertain  on  what 
ground  the  decision  of  the  court  below  proceeded — a 
disbelief  of  the  witnesses,  a  misunderstanding  of  their 
testimony,  or  an  erroneous  view  of  the  law  : — and  the 
judge,  whose  decision  is  appealed  from,  may  fairly 
ask  that  the  superior  tribunal  shall  have  before  it  all 
the  materials  on  which  his  decision  was  founded. 
But  this  is  from  the  nature  of  things  impossible  : 
who  is  to  report  the  demeanor  of  the  witnesses  when 
giving  their  testimony  ?  and  the  evidence  itself  may 
be  so  voluminous,  as  in  the  case  of  a  poor  litigant,  to 
amount  to  a  prohibition  of  appeal.  (/)  Moreover, 
when  the  decision  of  the  superior  tribunal  reversing 
that  of  the  inferior  is  obtained,  it  carries  little  or  no 
moral  weight  with  it ;  for  it  is  only  the  opinion  of 
Judge  A.  against  that  of  Judge  B.,  on  some  question 
of  law,  or  the  credit  due  to  witnesses,  or  the  infer- 
ences to  be  drawn  from  certain  facts  ;  in  which,  after 
all,  Judge  B.,  whose  decision  is  reversed,  may  be  right. 
Of  this  even  Bentham  himself  was  so   conscious,  that 


(/)  We  find  the  following  stated  as  right  to  call  on  the  appellant  to  print 

the  practice  of  our  own  ecclesiastical  the  whole,  or  so  much  or  such   parts 

courts,  at   least   as  they  existed   until  of   the  evidence   and   exhibits   in   the 

recently,   in   which,    by  the    way,    all  case   as   he  thinks   fit.     This  may,  in 

Bentham's  three   checks  were  united.  many  instances,  amount  to  a  denial  of 

"The  party  appealing  is  called   upon  appeal.     In    one    particular    case  the 

to  print   the  allegations  and  answers  party  did    intend  to  appeal,  but    find 

on  both   sides,  the  expense  of  which,  ing     that    the    printing    alone    would 

including   the  evidence  and   exhibits,  cost    very    nearly    ,£1,000,    he     aban- 

he  must  sustain   in  the  first  instance.  doned  the  idea  of  appealing."     3  Jur. 

And    the    opponent    proctor    has    the  \.\<>. 


GENERAL     VIEW.  157 

he  admits  that  recordation,  appeal,  and  all  other  in- 
stitutions in  the  character  of  checks,  without  publi- 
city, would  be  found  rather  to  operate  as  cloaks,  {q) 
But  publicity,  standing  by  itself,  would  be  equally 
inefficient.  The  trials  of  Naboth,  Socrates,  Milo, 
Throckmorton,  Sydney,  Baxter,  &c.,  were  as  public  as 
could  be  ;  i.  e.,  so  far  as  publicity  consists  in  the  doors 
of  the  court  being  open  to  all  persons  who  please  to 
go  into  them ;  and  as  the  number  of  persons  that  do 
this  must  necessarily  be  very  limited,  the  publicity 
here  spoken  of  by  Bentham,  probably  means  publi- 
city through  the  agency  of  the  press.  The  liberty  of 
the  press  would  not,  however,  last  long  if  the  power 
of  determining  both  the  law  and  the  facts  in  all 
causes,  both  civil  and  criminal — of  passing  sentence 
in  case  of  conviction  in  the  former,  and  assessing  the 
damages  for  the  successful  plaintiff  in  the  latter — 
were  vested  in  judges  who  arc  the  nominees  of  tht 
executive,  and  liable  as  men,  to  prejudices  of  class  and 
station,  political  and  personal.  Let  it  also  be  remem- 
bered, that  the  liberty  of  the  press  in  this  country 
dates  only  from  the  latter  end  of  the  seventeenth  cen- 
tury ;  that  trial  by  judge  and  jury  protected  the  other 
liberties  of  the  country,  long  before  liberty  of  the 
press  had  any  existence,  and  since  that  period  has  pro- 
tect «-d  both  it  and  them;  and  that  we  find  Bentham's 
three  checks  combined,  in  the  practice  of  the  civil 
tribunals  of  modem  France,  the  superiority  of  which 
over  all  others  has  not,  at  least  as  yet,  been  demon- 
strated. 

We  trust  we  have  shown  thai  without  the  assist- 
ance of  a  casual  tribunal,  through  which  alone  the 
cleansing  tide  of  fresh  though!  is  poured  into  judicial 
proceedings,    they    never    could     he    kept,    pure    and 

{g)  1  Jud.  Ev.  524. 


158  ENGLISH    LAW   OF   EVIDENCE. 

healthy  ;  and  that  no  effectual  checks  ever  have  been, 
or  ever  can  he  devised,  against  the  obvious  and  great 
dangers  of  entrusting  the  decision  of  facts  to  a  fixed 
tribunal,  however  elaborately  constituted.  Among 
many  other  testimonies  to  the  wisdom  of  our  an- 
cestors, in  the  constitution  of  their  ordinary  judicial 
tribunal,  are  to  be  found  the  recent  introduction  of 
the  practice  of  taking  evidence  viva,  voce,  into  the 
court  of  chancery,  (r)  the  court  of  admiralty,  (s)  and 
the  ecclesiastical  courts,  (7)  and  on  the  hearing  of 
motions  and  summonses  in  the  courts  of  common 
law ;  («)  the  establishment  of  trial  by  jury  in  the  two 
former  courts,  (x)  and  in  the  new  court  to  which  the 
principal  part  of  the  business  of  the  ecclesiastical 
courts  has  now  been  transferred ;  (jy)  and  that,  on  the 
continent  of  Europe,  where  the  practice  of  the  civil 
and  canon  laws  has  prevailed  for  centuries,  we  every- 
where find  the  inhabitants  loudly  demanding,  as  re- 
forms essential  to  a  sound  administration  of  justice, 
"  The  trial  by  jury,"  and  "  Publicity  of  judicial  pro- 
ceedings." 

(r)  15    &     16    Vict.    c.    86,   ss.  28  («)  17  &    18    Vict.    c.    125,   ss.    46 

et  seq.  et  seq. 

(s)  3  &  4  Vict.  c.  65,  ss.  7  et  seq.  (x)  21  &  22  Vict.  c.  27,  s.  3  ;  3  &  4 

(/)  17  &  18  Vict.  c.  47  ;  20  &  21      Vict.  c.  65,  s.  II. 
Vict.  cc.  77  and  85.  ( j')  20  &  21  Vict.  cc.  77  and  85. 


HISTORY    OF    ITS    RISE,     &C  159 


PART    II. 

HISTORY   OF   THE   RISE  AND  PROGRESS  OF   THE 

ENGLISH    LAW   OF   EVIDENCE:    WITH    ITS 

ACTUAL  STATE  AND    PROSPECTS. 


PARAGRAPH 

Object  of  this  Part 10S 

Inconsistent  dicta   as  to   the  antiquity  of  the  judicial  evidence  of  this 

country I°9 

Difference  between  the  ancient  and  modern  systems         .         .         .         .110 

Rules  of  evidence  are  either  primary  or  secondary in 

Primary  rules  of  evidence Ill 

Only  three m 

Universal  recogrition  of  them Ill 

Secondary  rules  of  evidence Ill 

Much  more  numerous in 

me  almost  as  universal  as  the  primary 112 

Others  much  less 1 12 

Principles  on  which  these  are  founded  were  well  known  to 

our  ancestors  .  .         .         .         •         •         •         .112 

In  f  .rmer  times  the  principles  of  evidence  were  not  embodied  in  binding 

role n4 

Origin  of               lern  "  Law  of  Evidence " 115 

lie  feature — rules  of  evidence  are  rules  of  law  .        .  116 

Gradual  development  of  this  principle        .        .        .        .        .  116 

History  of  the  rule  rejecting  hearsay  evidence     .        .        .  1x7 

of  the  law  of  evidence  dining  the 

last  and  present  centuries 1 18 

Came  of  th<-  slow  development  of   the   law  of  evidence  in 

land "9 

live  rules  of  law  come    to  maturity  before   the 

adjective        .......               •  119 

of  the  establi  bment  of  our  modern  sys- 

i'n,  of  evidence    .        .        •        •        •        •        •        .  1 19 

The  English                                                       le  one,  I  iken  as  a  whole  120 

Defects  in  lh(                   }2° 

108.   It   is  proposed  in  the  present  part,  to  trace 

the   rise   and   progress  of  the  law  of  evidence  in  this 


i Co  ENGLISH    LAW    OF   EVIDENCE. 

country  ;    concluding  with  some  observations  on  its 
actual  state  and  prospects.1 

109.  On  the  first  of  these  subjects  little  is  to  be 
found  in  our  modern  works,  beyond  a  few  dicta,  not 
very  consistent  with  each  other.  In  the  case  of  R.  v. 
The  Inhabitants  of  Eriswell,  (a)  decided  in  Trinity 
Term,  1790,  Lord  Kenyon,  C.  J.,  is  reported  to  have 
said,  "  The  rules  of  evidence  have  been  matured  by 
the  wisdom  of  ages,  and  are  now  revered  from  their 
antiquity  and  the  good  sense  in  which  they  are 
founded."  And  in  Bauerman  v.  Radenius,  (b)  about 
eight  years  later,  he  informs  us  that  at  the  beginning 
of  the  eighteenth  century,  Lord  Macclesfield  said  that 
the  most  effectual  way  of  removing  landmarks  would 
be  by  innovating  on  the  rules  of  evidence ;  and  so  he 
said  himself.  This,  however,  is  not  the  general  opin- 
ion of  the  present  day,  in  which  our  system  of  judicial 
evidence  is  commonly  spoken  of  as  something  alto- 
gether modern :  and  in  the  case  of  Lowe  v.  f  ol- 
liffe,  (c)  decided  not  quite  thirty  years  previous  to 
that  first  quoted,  Lord  Mansfield,  C.  J.,  is  reported  to 
have  declared  on  a  trial  at  bar,  that  the  court  "  did  not 
then  sit  there  to  take  its  rules  of  evidence  from  Sider- 
fin  and  Keblc  ;"  whose  reports  begin  about  a  century 
before  the  time  when  he  was  speaking.  In  the  pro- 
ceedings against  Queen  Caroline,  in  the  year  1820,  (d) 

(a)  3  T.  R    707.  721.  (d)  2  B.  &  B.  289 ;  see  infra,  bk.  3, 

(b)  7  T.  R.  663,  667.  pt.  2,  ch.  3. 

(c)  1  W.  Blackst.  366. 

1  For  a  history  of  evidence  in  other  countries,  the  student 
is  referred  to  the  valuable  and  instructive  researches  of  Le 
Gontil  (Essai  Historique  stir  les  Preuves,  sous  les  Legislations, 
Juive,  Egyptienne,  Indienne,  Grecqucs,  et  Romaine,  &c.  &c. 
Paris:  Durand,  1863),  a  work  none  the  less  admirable  for  its 
explorations  into  the  origin  of  the  law  of  evidence  than  ab- 
sorbingly interesting  to  the  curious  and  casual  reader. 


HISTORY    OF    ITS    RISE,     &C.  161 

Abbot,  C.  J.,  in  delivering  the  answer  of  the  judges  to 
a  question  put  by  the  House  of  Lords,  said,  in  their 
judgment  it  is  a  rule  of  evidence  as  old  as  any  part  of 
the  common  law  of  England,  that  the  contents  of  a 
written  instrument,  if  it  be  in  existence,  are  to  be 
proved  by  the  instrument  itself,  and  not  by  parol  evi- 
dence."1 On  the  other  hand,  in  the  work  on  evidence 
by  Messrs.  Phillipps  and  Amos,  (e)  published  in 
1838,  it  is  said  that  the  law  of  evidence,  according  to 
which  the  determinations  of  the  courts  are  at  present 
governed,  has  been  almost  entirely  created  since  the 
time  of  the  reporters  Lord  Raymond,  Salkeld,  and 
Strange  ;  i.  e.,  since  a  period  beginning  shortly  after 
the  revolution  of  1688,  and  ending  at  a  tolerably 
advanced  point  in  the  reign  of  Geo.  II.  Also,  in 
the  10th  ed.  of  Phillips  on  Evidence,  published  in 
1852,  (/)  it  is  stated  that  the  important  rule,  reject- 
ing heresay  or  second-hand  evidence,  is  not  of  great 
antiquity  ;  and  that  one  of  the  earliest  eases  in  which 
it  was  acted  upon  is  Samson  v.  Yardly,  P.  19  Car.  II., 
2  Kcb.  223. 

IIO.  The  truth  seems  to  be,  that  while  "The  Law 
of  Evidence"  is  the  creation  of  comparatively  modern 
times,  most  of  the  leading  principles  on  which  it  is 
founded  hive  been  known  and  admitted  from  the 
earliesl  ;  and    in    order    to   show   the    nature   of  the 

P  ge  335-  (/)  Vol.  i,  p.  if.5. 

'Si      '  Celebres,  Trial   of    Queen   Caroline.     New 

York  :  James  Cockcroft  &   Co.,  (874,  vol.  i.  p.  471;   Huse  v. 
McQuade,  25    Mo    ■      ;  Clark   v.  V  V.  Life  [n     I  o.,  7  Lans. 

: ;  Weaver  v.  Fletcher,  27  Ark.  510;  Ba  ..  Forbes,  36 

Md.  [54;  Arbuter  v.  Day,  30  Conn.  155  ;   Dixon    v.  Cook,  47 
Mi  Hartford    Fire.Im     Co    v.   Wilcox,   57    III.    1.S0; 

Letcher  \    Letcher,  50    Mo.  137;   Washington    In.  Co.  v.  St. 
Mary'     Seminary,  52   Id.  480  ;  Harris  v.  Rathbun,  2  Abb.  (N 
Y  1  A  pp.  Dec.  326;  Johnson  v.  Pollock,  58  111.   151;  McCiel 
land  v.  I ;  1 1  n c s ,  $2,  Iowa,  57 1. 
1 1 


162  ENGLISH    LAW    OF    EVIDENCE. 

ancient,  as  well  as  the  advantages  of  the  modern 
system,  it  will  be  necessary  to  examine  those  princi- 
ples. 

III.  All  rules  respecting  judicial  evidence  maybe 
divided     into     primary    and    secondary ;  the     former 
relating    to    the   quid     propandum,   or  thing    to     be 
proved,  the  latter  to  the  modus  propandi,  or  mode  of 
proving  it.     Of  the   former  there  are  but  three:   ist. 
That  the  evidence  adduced  must  be  directed  solely  to 
the   matters   in    dispute;  2nd.    That   the   burden    of 
proof  lies  on  the   party  who  would  be  defeated,  sup- 
posing evidence  were   not  given  on   either  side ;  and 
3rd.  That  it  is  sufficient  for   the  party  on  whom  the 
burden    lies,   to    prove   the     substance    of    the  issue 
raised.     These  rules  are  so  obviously  reasonable  and 
necessary    for   the    administration  of  justice,  that    it 
would  be  difficult  to  find  a  system  in  which  they  have 
not    at    least  a  theoretical    existence,   however   their 
effect  may  have  occasionally  have  been    extended  or 
narrowed    by  artificial   and  technical  reasoning;  and 
accordingly  they  have  always  been  recognized  in  our 
own.  (g)     The  secondary  rules  arc  necessarily  more 
numerous,  but  there  are  some  almost  as  obvious  and 
universal  as  the  primary.     Probably  no  code  of  laws 

(g)  That  the  proof  should  be  con-  F.  N.  R   106,  II. ;  Co.  Litt.  6b  ;  2  Inst, 
fined    ;■   tl                         -d.  and   conse-  662;    4    Inst.   279;    3   Leon.    162,  pi. 
quentlv   that   the  admissibility  of  evi-  211  ;  Gouldsb.  23,  pi:  2  ;  Anon.,  Littl. 
dence   depends    on    the    state   of    the  R-   3^  ;    and    the  maxim,   "acton    in 
pleadings,   see    Finch,    Comm.   Laws,  cumbit  onus  probandi,"  seems  also  to 
61  ■  the  cases    from   the   Year   Hook,  have    been    well    known     in    former 
collected  in   2  Rol.Abr.676.677.pl.  times  ;  4  Co.  71  b  ;  Hob.  103.   A  case 
8.10,11, 13, 14,  24,28,  &c;  and  those  of    the   burden   of    proof    shifting   is 
put  bv  b.            ■  e,  A.  G.  arguendo,  in  given  by  Glanville,  lib.  10,  c.  12.  Also, 
;iiger-..  I                 Plowd.  7.      Again,  that   it   is   sufficient  to  prove  the  sub- 
that  the  burden  of  proof  lies  in  gen-  stance  of  the  issue,  see   Litt.  ss.  483, 
end    on    the    party   who    asserts    the  484,485;  6  Edw.  III.  41  b,  pi.  22  ;  8 
affirmative,    has    been    a    recognized  Edw.  III.  7°  a,  pi.  37  !  Hob.  73.  81  : 
maxim  of   law   from   the   ear]  est   pe-  Tryals   per   Pais,    140,    Ed.  1665;  Co 
riods,  see  bract,  lib.  4,  c.  7,  fol    301  B. ;  Litt.  227  a  ;  281  b,  282,  a,  &c. 


HISTORY    OF    ITS    RISE,    &C.  163 

ever  existed  which  was  destitute  of  its  estoppels,  pre- 
sumptions, and  oaths  or  other  sanctions  of  truth,  or 
which  neglected  to  establish  the  great  principle,  so 
essential  to  the  peace  of  society,  that  matters  ami 
claims  which  have  been  once  regularly  and  judicially 
6cl'  must  be  considered   as  settled  and  not   again 

be  brought  into  dispute.  Of  all  these  likewise  we 
find  ample  mention  in  our  early  books;  (A)  especially 
of  estoppels,  the  doctrine  of  which,  as  observed  by  a 
late  able  writer,  was  once  tortured  into  a  variety  of 
absurd  refinements.  (7) 

112.  Many  of  the  other  secondary  rules  of  evi- 
dence are  based  on  principles  which,  though  quite  as 
consonant  to  reason,  and  as  much  required  for  a  per- 
fect administration  of  justice,  are  not  so  obvious  at 
first  sight;  and  which,  owing  to  the  hardship  of  their 
enforcement  in  particular  cases,  and  the  great  discre- 
tion required  in  their  application,  are  sometimes  apt 
to  be  di  rded.     Among  these  maybe  reckoned 

the  just  principle,  "  res  inter  alios  acta  alteri  nocere 
non  debet," — that  persons  are  not  to  be  affected  by 

(h)  See  Glanv.   lil>.  12,   c.  24,  who  rather  abuse,  thi  t  Christen 

of    Hen.  II.;  Odo  including  this  country,  which  always  in- 

de  <  '   mor.  in  Scac.  of  truth,  and 

1  <iw.  I. ;  6  l'.'l'.v.  III.  45  a,  pi.  31  ;  had  judicial   |  n   under  the 

ami  1"  in  the  in-  nami  law.  And  with  respect 

nning  to  the  authority  of  res  judicata :  bythe 

.11.     As  old  1    I  [en.   4,   c.    2;,. 

I    by   ancienl  mei  ur 

aut!  lib.  I    >.  31.  the  king,  the  parties  and    I 

lib.  1.  ■  .   1.  .    1  .   i    •■-  I  until 

SS.  '1  1  :  a  and  b, 

67  b  and  1> ;  5  1  taint  <>r  by  -  1  roi     if 

en  i!  ed  by  the  law  in 

1  I.  a ;  the  times  of  the   pr< 

Cro 

pi.  2.  West,  2  (13  Edw.  r .  stat.  1).  c.  5,  s.  2. 
It  is  well              .  that  dui  (/)    2    Smith's     I. cad.    I  hoy 

hs  were  1  1  4th  ed. 


164 


ENGLISH    LAW    OF    EVIDENCE. 


the  acts  or  words  of  others,  to  which  they  were 
neither  party  nor  privy,  and  consequently  had  no 
power  to  prevent  or  control.  We  find  this  appealed 
to  as  a  recognized  maxim  of  law  so  early  as  the  reign 
of  Edward  II.  (/-)  Under  this  head  comes  the  great 
principle,  the  strict  enforcement  of  which  (as  has 
been  already  stated)  (/)  forms  a  distinguishing 
feature  of  the  English  law  of  evidence  ;  namely,  the 
rejection  of  all  transmitted  or  derivative  evidence — 
of  all  proof  offered  second-hand,  or  obstetricante 
manu.  We  have  seen  the  observations  of  Lord  C. 
J.  Abbott,  as  to  that  branch  of  this  rule  which  relates 
to  written  instruments  ;  {111)  and  with  respect  to  hear- 
sav  or  second-hand  evidence  in  general,  our  ancient 
lawyers  seem  to  have  had  a  thorough  perception  of  its 

(k)    M.  3   Edw.   II.    53,  tit.  Entre.      whom  it  be  ;  they  gnve  judgment  that 


A  writ  of  entry  ad  terminum  qui 
praeteiiil  was  brought,  in  which  the 
demandant  alleged  that  the  tenant  had 
right  of  entry  only  through  A.,  his 
father,  who  leased  to  him  the  term, 
&c.  ;  to  which  the  tenant  pleaded  that 
the  plaintiff  was  bastard,  and  could 
rot  claim  as  heir  to  A.  ;  to  which  the 
demandant  replied  that  he  had  form- 
erly sued  a  writ  against  one  C,  who 
pleaded  the  bastardy  of  the  demand- 
ant, who  thereupon  sued  out  a  writ  to 
the  bishop  of  L. — ,  who  certified  to 
the  court  that  he  was  mulier,  &c.  To 
this  ihe  tenant  rejoined  that  he  was  no 
party  to  that  proceeding,  and  res  inter 
alios  acta  aliis,  &c.  To  this  It  was 
answered  that  that  maxim  did  not 
apply  to  such  a  case.  The  judges 
took  time  to  consider  until  the  next 
term,  and  then  gave  judgment,  that  as 
that  court  had  been  certified  of  the 
demandant's  state  of  mulier  by  a  cer- 
tification, which  was  completed  by  a 
judgment  given  under  that  certifica- 
tion ;  and  as  he  who  is  once  mulier  is 
mulier    forever,    nc    matter    between 


he  was  entitled  to  seisin,  &c.  See  on 
this  subject,  Co.  Litt.  352  b  ;  2 
Smith's  Lead.  Cas.  614,  4th  ed.  The 
above  case  was  decided  exactly  350 
years  before  the  first  case  in  Siderfin, 
while  the  reports  of  Keble  begin  a 
year  later, — the  two  reporters  whose 
authority  on  the  subject  of  evidence 
Lord  Mansfield,  1  W.  151.  366,  wished 
to  consign  to  oblivion,  on  account  of 
their  antiquity.  See  also  2  Inst.  513. 
The  rule  "  res  inter  alios,  &c,"  was 
well  known  at  Rome.  See  Cod.  lib. 
7,  tit.  60,  11.  1  and  2,  in  the  latter  of 
which  it  is  spoken  of  as  being  "  notis- 
simi  juris."     Infra,  bk.  3,  pt.  2,  c.  5. 

(/)  Introd.  §  29,  and  supra,  pt.  I, 
§  89.  See  infra,  bk.  3,  pt.  2,  ch. 
3  and  4. 

(m)  Supra,  %  109.  See  Fleta,  lib.  6, 
ch.  34,  §  1,  and  6  Mod.  248.  This 
principle  was  also  known  to  the  Ro- 
mans. Dig.  lib.  22,  tit.  4,  1.  2,  lib.  26, 
tit.  7,  1.  57  ;  Cod.  lib.  4,  tit.  21,  11.  5,  7, 
and  11  ;  Domat,  Lois  Civiles,  pt.  I 
liv.  3,  tit.  6,  sect.  2,  §£  x.  and  xi. 


HISTORY    OF    ITS    RISE,     &C. 


165 


infirmity.  (V)  Thus,  Sir  Edward  Coke,  in  the  early 
part  of  the  seventeenth  century,  lays  down  as  a  rule 
of  law,  "  Pius   valet  unus  oculatus  testis,  quam  auriti 

(«)  It  could  hardly  have  been  other- 
wise, as  the  infirmity  of  this  kind  of 
proof  seems  to  have  been  observed  in 
almost  every  age  and  country.  Ac- 
cording to  the  Athenian  law  hearsay 
evidence,  or  <XKor)y  /ta/jrvpslv, 
was    allowed    in  cases  where  the  sup- 


medan  law,  Macnagh.  Mo.  Law,  259). 
Under  ih;  old  French  law,  Pothier 
expressly  laid  down  :  "  Above  all  it  is 
requisite  that  the  witness  who  says  he 
has  a  knowledge  of  any  fact,  should 
show  how  he  has  such  knowledge. 
For  instance,  if  I  would  prove  that 
posed  speaker  was  dead,  and   in  some      you  had  sold  me  such  a  thing,  it  would 


other  instances  (Law  Mag.  (N.  S.) 
No.  I,  p.  36).  Hearsay  appears  to 
have  been  received  in  ancient  Rome, 
Quint,  lib.  5,  cap.  7,  at  least  as  proof 
of  old  transactions  (Dig.  lib.  22,  tit.  3, 
1.  28,  and  lib.  39,  tit.  3,  1.  2,  §  8), 
although  rumor  and  common  report 
were  estimated  at  their  worth.  "  Vanaj 
voces  populi  non  sunt  audiendae;  nee 
enim  vocibus  eoruin  credi  oportet, 
quando  aut  noxium  crimine  absolvi, 
autinnocentem  condemnari  desiderat" 
(Cod.  lib.  9,  tit.  47,  1.  12).  And  on 
the  value  of  hearsay  when  admitted, 
Quintilian  in  loc.  cit.  says,  "Gentium 
simul  universaruru  elevata  testimouia 
ab  oratoribus  scimus,  et   tota  genera 

moniorum,    ut    de    auditinnibus ; 
non  enim  ipsos  esse  ti    I  -I  injura- 

torum  al  es."     In  of  in- 

juratorum     ome  copies  have  injuria- 

iii,  which  wholly  alters  the  sense 

of  the  pas  age,  but  ihc  other  reading 

ipti  'l  by  an  immense  majority  of 

the  commentatoi  >.     The  1  ivilians  and 

milled   hearsay  in   pi 
of  ancient    rights  and   in    ome  other 

,  but  in  general  look(   I  on  it  with 

ic  ion   1 1  [uberu  -,    Prasl.    fur,   <  iv. 

lib.    22,    tit.    5,    i).    20  ;     M  is    de 

ncl,  mi ,  to  1  ;  Struviu  1,  Syn- 


not  be  sufficient  for  the  witness  to  say 
in  vague  terms,  that  he  knew  you  had 
sold  me  that  thing  ;  he  should  state 
how  he  had  that  knowledge  ;  f  r  in- 
stance, that  he  was  present  at  the 
agreement  ;  or  that  he  had  heard  you 
say  you  had  made  such  a  sale  ;  if  he 
said  that  he  knew  it  from  a  third 
person,  his  deposition  would  not  be 
any  proof  (1  Ev.  Poth.  §  7S6).  Loysel, 
a  very  ancient  French  authority,  sig- 
nificantly observes,*  "  Un  seul  ceil  a 
plus  de  credit  que  deux  oieillcs  n'ont 
d'audivi :"  and  again,  "  Ouir  dire  va 
par  ville,  et  en  tin  muid  de  cuider  n'y 
a  point  plein  poing  de  Ravoir."  In 
commenting  on  this,  Bonnier,  in  his 
Traite  des  Preuves,  §  205,  observes, 
that  a  multitude  of  remarks  of  a 
similar  nature  have  been  made  (by 
1  n  ucli  lawyers,  as  it  seen  . ).  but  they 
are,  alter  all,  nothing  more  than  cau- 
1  ion  i  (indical ion  1,  1101  po  il ive  pre- 
cepts.     And  in  another  pi  n  e  he 

1  he  mi  nil-Mi  pracl  1  Prance  : 

"It  is  evident  thai  pr<  10I  weakens  in 
propoi  lion    to    its   dista  from    its 

ource We  therefoi 

1  to  liavi  t  the 

.  when  tl 1  the  in  it 

i-  e  ni. i\    be  1  mployi  d It 


■-.  ed.   Mulleri,  Exerc.  28'  is  only  when   the  direct  witne    ei 

tit.  45,  note  (7),  ix. '-i  ieq,),    [l   1^  re-  dead,  01    incapable  ol   deposing,  that 

jected   '             ral  by  the   Scotch    law  witnesses   ol    the   second    degree   are 

(Burnett's  Crim.   Law  v             o  ;    1  allowed  to  be  called,  to  reproduce  the 

Dicks.  Law  Ev.  in  Scotl.  57  i      eq.) ;  -u  of  the  first.  Still,  the  very 

and,  it   is  said,  also   by  the    Moham-  fact   that   it   is   no  longer   possible  to 


j  66 


EXGLISII    LAW    OF    EVIDENCE. 


decern."     "Testis  de  visu  pi 
the  judges  having  held  in 

hear  the  first,  should  induce  the  judge 
I  examine  carefully  if  there  be  any 
symptoms  of  fraud:  for  it  is  obvious 
that  he  who  desires  to  injure  without 

sing  himself  to  detection,  will  not 

fail    to    put    a    false    statement    in    the 

mouth    of    some    one    from    whom    he 

cannot  fear  contradiction.     A  witness 

therefore   doubly  credible,  in 

■  to  have  reliance  placed  on  his 
deposition  when  it  only  amounts  to  a 
hearsay  ;  a  fortiori,  proof  is  extremely 
weak  when  we  are  obliged  to  follow- 
out  a  line  (parcourir  une  iilieie)  more 
or  less  complicated,  before  we  can 
arrive  at  the  direct  testimony.  .And 
yet  in  the  celebrated  prosecution  of 
the  Calases,  the  strongest  piece  of 
circumstantial  evidence  came  under 
the  cognizance  of  the  judge,  only 
through  the  medium  of  four  witnes 
who  had,  as  it  was  said,  successively 
transmittal  it  from  one  to  the  other  ; 
and  the  first  of  those  witnesses,  the 
one  who  was  supposed  to  have  heard 
the  thre'.t  uttered  by  the  father  to  his 
son,  was  not  even  named,  being  an 
unknown  girl  whom  it  was  impossible 
to  find.  While  branding  with  just 
indignation  proceedings  where  capital 
conviction;  were  pronounced  on  such 
evidence,  it  imi-t  be  acknowledged 
that  publi :  opinion  alone  can  prevent 
a  repetition  of  them.  In  this  matter, 
a^  in  everything  else  which  concerns 
the  apprec  ation  of  testimony,  it  is  im- 
j.  issible  to  lay  down  fixed  rules  before- 
hand ;   foi    how  can  we    determine  a 

■i    the   precise   point  where  truth 

begins  an      error  ends?"  (Id.  ?>;  728, 

e  observations,  while  they 

show  the  defects  of  the  French  judicial 

•  in,  place  in  a  strong  light  the  ex- 
cellence "f  our  own  Such  a  case  as 
that  lure  referred  to  by  Bonnier  could 
hardly  occur  in  England  at  the  present 


aeponderat  aliis."  (d)     So, 

the  case  of  one  William 

day  ;  for,  our  rules  whi  ulate  the 

lissibility  of  evide  1     ;    rules 

of  law,  no  judge  ought  to  receive 
such  proof;  and  were  lie  to  violate  his 
day,  if  not  his  oath,  I  ing,  still 

it  would  be  for  the  jury,  and  not  for 
him,  to  decide   on    its  val  id    pro- 

nounce the  verdict  of  acquittal  or 
condemnation.  Nor  did  the  principle 
in  question  escape  the  no)  even  of 
the  rude  legislators  of  the-  middle 
Notwithstanding  the  widely- 
ad  superstition  which  stamps  with 
unquestionable  veiacity  the  statements 
of  criminals  at  the  place  of  execution, 
we  find  the  following  enactment  in  the 
Venedotian  Code,  or  ancient  code  of 
North  Wales,  bk.  2,  c.  4.  £  II  :  "A 
thief    at    the    gallow  ting    his 

fellow-thieves:  If  he  should  assert 
that  another  person  was  an  accessory 
with  him  in  the  robbers'  for  which  he 
is  about  to  suffer  ;  and  he  should  per- 
sist in  his  assertion  unto  the  state  God 
want  to  and  he  is  going  to;  his  word 
is  there  decisive,  and  cannot  be  gain- 
said .  nevertheless  his  fellow-thief 
shall  not  be  executed,  but  is  a  saleable 
thief;  for  no  person  is  to  be  executed 
on  the  word  of  another,  if  nothing  be 
found  on  his  person."  The  Dimetian 
Code,  or  ancient  Code  of  West  Wales, 
contains  a  similar  provision  (6k,  2,  c. 
5,  §  q).  See  for  these  Codes  the 
"Ancient  Laws  and  Institutes  of 
Wales,  &c."  printed  under  the  direc- 
tion of  the  commissioners  on  the  pub- 
lic records,  1S41.  It  seems  that  the 
Hindu  Code  forms  an  exception  ;  and 
that  in  that  country  the  secondary 
witness,  i.  c,  the  person  who  has 
been  made  acquainted  with  facts  by 
hearsay,  is  as  receivable  as  any 
r.  Translation  of  I'ootee,  c  3,  s 
7,  in  Ilalhed's  Code  of  GentOO  Laws. 
(0  4  Inst.  279  . 


HISTORY    OF    ITS    RISE,     &C.  167 

Thomas,  that  the  statutes  1  Edw.  6,  c.  i2,s.  22,  and  5& 
6  Edw.  6,  c.  11,  s.  12,  which  require  that  no  person  be 
proceeded  against  for  treason  except  on  the  oath  of  two 
lawful  accusers,  were  satisfied  by  the  evidence  of  one 
person  who  spoke  of  his  own  knowledge,  and  that  of 
another  who  had  the  information  from  a  third,  and  he 
from  a  fourth,  to  whom  the  first  had  related  it.  (p) 
The  same  authority  pronounces  it  "  a  strange  conceit 
that  one  may  be  an  accuser  by  hearsay  ;"  and  says 
that  the  doctrine  was  utterly  denied  by  the  judges  in 
Lord  Lumley's  case,  (g)  H.  14  Eliz.,  a  report  of  which 
he  had  seen  in  the  handwriting  of  C.  J.  Dyer;  (r) 
and  Thomas's  case  is  also  mentioned  by  Sir  Matthew 
Hale  as  overruled,  (s)  As  our  legal  history  advances, 
the  authorities  become  more  distinct  on  this  subject, 
and  the  ineonclusiveness  of  hearsay  or  second-hand 
evidence,  seems  to  have  been  universally  recognized 
during  the  latter  half,  at  least,  of  the  seventeenth  cen- 
tury. (/)  Instances  are  to  be  seen  in  the  state  prose- 
cution >  of  that  period ;  (u)  and  we  sometimes  find 
the  objection  taken  eve  n  by  persons  not  in  the  legal 
pro!  ion.  Thus  Archbishop  Laud,  in  his  defense, 
observes  of  some  evidence  offered  against  him,  that  it 
is"  hearsay";  (x)  and  Lord  William  Russell,  complain- 
ing  on    his  trial   thai    lie   thought    In-   had    very   hard 

( />)  Thomas'               Dyer,  99  b,  pi.  a>  th<-  evidence  "fa  second  acci 

68,  I'    1  within  tl                   of  the  statute,  See 

--•3.  II   1  ,  in  loc.  cit.,  and  2  Hawk.  P.  C. 

(;•)  Id,  2  1.  c.  25,    .  1  1 1. 

(1)  1    If.    P.   c.  306 ;    2    I'  (/ 1  s. mi, on               iv,  2   Keb.  223, 

These   authorities    probably   did    nol  (5)  P.  ig  Car.  II. ;  Luttrell  v.  Reynell, 

mean  thai                                                    1  1   Mm. I.  j-j,  and  the  authorities  in  the 

wiir                             jected  as  coming  m 

■iil-hand  ;   but  that,  1  (»>  g  Ho.  St.  Tr.  608,  848, 10(^4  ;  ia 

up  1  .  the  in  •  •'•  1  ni     .  tl  •■•    -  a  I'l.  1.154. 

mere  repetition  of  his  testimony,  and  4  Ho.  St.  I  r.  43' 
consequently  could  not  be  considered 


1 68  ENGLISH    LAW     OF    EVIDENCE, 

measure,  thai  there  was  brought  against  him  a  great 
deal  of  evidence  by  hearsay,  (y)  the  court  at  once 
admitted  the  objection,  but  evaded  its  force  in  a  way 
that  will  be  shown  presently,  and  in  Mich.  T.  19  Jac. 
1.,  the  principle  that  the  opinions  of  witnesses  are  not 
a  legitimate  ground  for  legal  decision  was  recognized 
by  the  Star  Chamber.  (V) 

113.  Main  other  instances  might  be  adduced,  to 
show  the  recognition  by  our  ancestors,  of  principles  of 
evidence-  which  we  are  in  the  habit  of  looking  on  as 
altogether  modern.  Even  the  rules  of  our  forensic 
practice  respecting  proof  were  known  to  them  ;  as 
that,  at  trials  the  party  on  whom  the  burden  of  proof 
lies  ought  to  begin,  (a)  that  leading  interrogatories 
ought  not  to  be  put,  &c.  (J>) 

114.  But  although  the  germs  of  our  law  of  evi- 
dence are  thus  traceable  in  the  proceedings  of  our  an- 
cestors, they  do  not  appear  to  have  reduced  its  prin- 
ciples into  a  system,  or  invested  them  with  the  obli- 
gatory force  essential  to  the  steady  and  impartial 
administration  of  justice.  Except  in  the  case  of  prae- 
sumptiones  juris  which,  being  part  of  the  law  itself, 
it  would  have  been  manifestly  improper  to  disregard, 
and  in  a  few  other  instances,  the  principles  of  evidence 
were  looked  on  as  something  merely  directory,  which 
judges  and  jurymen  might  follow  or  not  at  their  dis- 
cretion. The  best  illustration  of  this  will  be  found  in 
the  practice  relative  to  hearsay  or  second-hand  evi- 
dence.  We  have  seen  that  our  ancient  lawyers  were 
perfectly  aware  of  its  weakness,  but  they  did  not  think 
thei  1 1  called  on  to  reject  it  absolutely.     Thus  in 


(y)  ',  II...  St.  Tr.  G08.  (a)  Anon.,  Litt.  R.  36;    IJ.<iion   v. 

(x)  Aila;  in  the      Ibgrave,  3  Leon.  162,  pi.  211  ;  Gouldsb 

margin  of  ii,  1  of  1  jrer's  Re-      23,  pi.  2. 

por:  3  b,  pi.  11.  (i)  4  Inst.  279. 


HISTORY    OF    ITS    RISE,     &C.  169 

*  * 

Rolfe  v.  Hampden,  T.  34  Hen.  VIII.,  (/)  in  order  to 
support  a  will  of  land,  contained  in  an  ancient  paper 
writing  (before  the  statute  of  frauds),  the  testimony 
of  three  witnesses  was  received,  one  of  whom  spoke 
of  his  own  knowledge,  the  rest  on  the  report  of  others ; 
and  L.  C.  J.  Dyer,  by  whom  the  case  is  reported,  saw 
nothing  extraordinary  in  this,  but  observes,  "the  jury 
paid  little  regard  to  the  aforesaid  testimony."  And  at 
a  later  period  the  courts  seem  to  have  thought  that, 
although  hearsay  was  not  evidence  in  itself,  it  might 
be  used  to  introduce,  explain,  or  corroborate  more 
regular  proof,  (d) 

115.  Instances  are,  however,  to  be  found  in  the 
state  trials,  previous  to  the  revolution  of  1688,  of  de- 
cisions going  much  beyond  this,  and  the  key  to  which 
lies  in  a  circumstance  commonly  overlooked.  So  long 
as  the  judges  believed  that  it  was  discretionary  with 
them  to  enforce  or  disregard  the  received  principles 
of  evidence,  it  is  natural  to  suppose  that,  with  the  high 
prerogative  notions  of  those  times,  and  dependent  as 
they  were  on  the  crown,  they  would  exercise  that  dis- 
cretion in  favor  of  the  crown,  and  carefully  avoid  laying 
down  any  general  rides  which  might  fetter  the  ex- 
ecutive in  proceeding  against  state  criminals.  Accord- 
ingly we  find  that,  in  the  sixteenth  and  early  part  of 
the  seventeenth  centuries,  it  was  an  open  and  avowed 
principle,  that  the  rules  of  evidence  and  practice  in 
prosecutions  for  high  treason,  and  perhaps  for  felony 
also,  were  different  from  those  followed  in  ordinary 
cases.  (-  i  Thus,  although  by  the  established  usage  ol 
the  common  law  from  the  earliest  times,  witnesses 
were  sworn,  examined,  and    ci       ■  tamined    in  open 

(e)  Dyer,  I.  xi.  2   Hawk,    P.   C  c.  46,  s.  q 

(</)  2  Hawk.  I'.  '  .  0.46,8   1  1.  'd.      and    the  authorities   in  the  following 

I716  ;   B  ic,    Al.r.    Evid.    K..  ed.   I  .  ii"i  '*. 

Trial  1  per  Pais,       ,.  (90  ;  1  Mod.  i 


ENGLISH    LAW     OF    EVIDENCE. 

mi,  the  judges  refused  to  compel  their  personal  ap- 
pearance in  cases  of  treason,  (/)  holding  that  it  would 
be  opening  a  gap  for  the  destruction  of  the  king,  &c. 
The  consequence  of  establishing  this  distinction 
was,  thai   on  charges  of  that  nature,  not  only  was  the 
loosest  and  most  dangerous  evidence  received,  but  the 
<  ntire  proceedings  were  conducted  in  a  way  which  set 
at    defiance    every    principle   of  fairness   and  justice. 
"  Throughout  the   state  trials  before  the  time  of  the 
commonwealth,"  observes  Mr.  Phillipps,  (It)  "the worst 
ecies   of  hearsay  was  constantly  received;    such  as 
the  examinations  of  persons  who   might   have    been 
product  d  as  witnesses,  or  who  had  been  convicted  of 
capital  offenses,  or  who  had  signed  confessions  in  the 
presence  only  of  the  officers  of  government,  and  under 
the   torture  of  the  rack."     Thus,  in    the  case  of  Sir 
Nicholas  Throckmorton,  (V)    the   principal    evidence 
-  the  deposition  of  a  person  already  convicted  of 
treason,  and  whose  execution  had  been  respited  from 
time   to   time   in   order  to  induce  him  to  accuse  the 
prisonei.  (£)      And    among    many   flagrant    misinter- 
pretations ot  the  law  in  favor  of  the  crown  and  against 
the  prisoner,  of  which  that  trial  is  full,  the  court  un- 
blushingly  declared   that    the  words  in  the  statute  of 
treason,  2^   Edw.  3,  c.  2,  stat.  5,  that   persons  accused 
of  treason  should  "  thereof  be  proveably  attainted  of 
open  deed,  by  people  of  their  condition,"  meant  that 
tin  y  slmuld  he  attainted,  not  by  verdict  of  a  jury,  but 
by  the  evidence  of  persons  already  attainted,  who  de- 

aundf.  P.  C.  104.  scrupulously  defined  since,  were  either 

Walter    Raleigh's    Case,   2  very   imperfectly   recognized,  O'   con- 

llallam,  in  his  Con-  tinually  transgressed." 

1  II  storyof  England,  vol.  2,  (A)  i  Ph.  Ev.  r66,    oih  ed. 

I     '■•                           king  of   the  trial  (*)  i  Ho.  St.  Tr.  &£,•> 

of  the  Karl  of  Strafford,  says,  that  "in  (£)   i  Ph.  Ev.  166,  loth  ed. 
age   the    rales    of    evidence,   so 


HISTORY    OF    ITS    RISE,     &C.  171 

clare   the   accused   participators  in   their  treason,  and 
are   thus  "  people   of  their  condition."  (/)     After  the 
Restoration  matters  seem  to  have  mended ;  the  wit- 
nesses appeared  in  person,  but  the  practice  of  admit- 
ting   proof  at   second-hand    continued  —  the  judges 
acknowledging  that  it  was  not  evidence,  and  promis- 
ing to  tell  the  jury  so.  (m)    Thus,  in  Langhorn's  Case, 
31  Car.  II.,  (;/)  Atkins,  J.,  interposed  while  a  witness 
was   giving    his    testimony.      "  That    is    no    evidence 
against  the   prisoner,  because  it  is   by  hearsay;"  and 
Scroggs,  C.  J.,  added,  "  It  is  right,  and  the  jury  ought 
to  take  notice,  that  what  another  man  said  is  no  evi- 
dence   against    the    prisoner,  for   nothing  will   be  evi- 
dence against  him  but  what  is  of  his  own  knowledge." 
Notwithstanding  this   language,  to  quote   again  from 
Mr.  Phillipps,  (o)  "On  the  trials  for  the  Popish  plot, 
the  evidence  consisted  principally  of  a  narrative  of  the 
transactions    of  the   supposed  conspirators  in  various 
countries,  collected  during  along  period  of  time  from 
a    multitude    of   letters,  the   contents   of   which  were 
given    from    recollection;  the    witnesses    not    having 
taken  a  nod-  of  any  part  of  the  letters  at  the  time  of 
reading,  not  having   read   them   lor  a  great  number  of 
years,  nor   having  been  required  in  reading  to  notice 
their  contents,  and  not  producing  cue  of  the  letters,  or 
a  copy,  or  even  an  extract." 

116.  The  system  known  in  practice  by  the  title 
ofthi  "Law  of  Evidence,"  began   to  form   about  the 

(/  ,  i  Ho.  St.  Tr.  i  too  much   reliance  musl  be  placed  on 

{,„)  See  Lai  ,  7  Ho*.  St.                       1   work  1  ailed   "  'I  lie   State 

Tr.44: ;  I  .ord  Willi  iml  •  " 

9  Id.  I                  Sidi  ,  Id.     of  tl                                    .ili 

.     u     1. 1.     I  114        ml. in,  ,:  .    I..  :  I  It 

ami  1  15 1.  mid    nol    1"--  n    that    most 

I    !         I    I  I.  Of  1 

(0)  1    I'll.   I  I'h.  d.     I  1    m  »n,    and    took 

the  above  ob  mi  11  follows  that      place  in  times  of  great  excitem 


r7a  ENGLISH    LAW     OF    EVIDENCE. 

middle  of  the  seventeenth  century, — at  least  this  is 
sufficiently  accurate  for  a  general  view.  The  charac- 
teristic feature  which  distinguishes  it,  both  from  our 
own  ancient  system  and  those  of  most  other  nations, 
is,  that  its  rules  of  evidence,  both  primary  and  secon- 
dary,  are  in  general  rules  of  law;  which  are  not  to  be 
enforced  or  relaxed  at  the  discretion  of  judges,  but  an 
as  binding  on  the  court,  juries,  litigants:  and  witnesses, 
as  the  rest  of  the  common  and  statute  law  of  the  land; 
and  that  it  is  only  in  the  forsensic  procedure  which 
regulates  the  manner  and  order  of  offering,  accepting, 
and  rejecting  evidence,  that  a  discretionary  power,  and 
even  that  a  limited  one,  is  vested  in  the  bench.  A 
judge,  consequently,  has  now  no  more  right  to  receive 
prohibited  evidence,  because  he  thinks  that  by  so 
doing  justice  will  be  advanced  in  the  particular  case, 
than  he  has  to  suspend  the  operation  of  the  Statute 
of  Mortmain,  or  to  refuse  to  permit  an  heir-at-law  to 
recover  in  ejectment,  because  it  appears  that  he  is 
amply  provided  for  without  the  land  in  dispute.  It 
musl  nut,  however,  be  supposed  that  this  great  princi- 
ple became  established  all  at  once;  and  indeed  the 
gradual  development  of  our  system  of  judicial  evi- 
dence,  from  the  above  epoch  to  the  present  day,  may 
be  studied  alike  with  advantage  and  pleasure.  To 
point  "lit  the  various  improvements  and  alterations 
that  have  from  time  to  time  been  effected  in  it,  by  the 
courts  and  the  legislature,  would  far  exceed  the 
Limits  of  a  mere  sketch  of  its  progress.  It  will  there- 
fore  be  sufficient  to  glance  at  a  few  particulars;  and 
we  shall  prot  eed  in  the  first  place  with  the  history, 
during  that  period,  of  the  rule  rejecting  hearsay  evi- 
dence. 

117.   Although,  as  already  stated,  the  infirmity  of 
hearsay  evidence  was  generally  acknowledged   in  the 


HISTORY    OF    ITS     RISE,     &C.  173 

reign  of  Charles  II. ;  (J>)  yet  Sir  Matthew  Hale  gave 
it  as  his  opinion,  that  where  a  rape  was  committed  on 
a  child  of  tender  years,  the  court  might   receive,  as 
evidence,  the  child's  narrative  of  the  transaction  to  her 
mother  or  other  relations.  (^)     At  the  beginning  of 
the  eighteenth  century,  Sergeant   Hawkins  only  ven- 
tures to  lay  down  the  rule  thus :  (7-)  "  It  seems  agreed 
that  what  a  stranger  has  been  heard  to  say  is  in  strict- 
ness no  manner  of  evidence  either  for   or  against  a 
prisoner;"  and   similar  language    is  used    in  Bacon's 
Abridgment,  (s)     Lord  Chief  Baron  Gilbert  also,  in 
his  Treatise  on  the  Law  of  Evidence,  composed  about 
the  same  time,  being,  it  is  believed,  the  earliest  on  the 
subject,  lays  down   that  "  a  mere    hearsay  is  no  evi- 
dence ;  "  (i)  "  but  though  hearsay  be  not  allowed  as 
direct  evidence,  yet   it  may  be  in  corroboration  of  a 
witness's    testimony,  to    show    that    he  affirmed    the 
same  thing  before  on  other  occasions,  and   that  the 
witness  is  still  consistent  with  himself."  (7/)     Still,  in 
1754,  on    the  trial  of  Elizabeth  Canning  for  perjury, 
we  find  some  rather  elaborately  got  up  evidence  ten- 
dered and  rejected  by  the  bench,  the  nature  of  which 
seems  to  show,  that  the  rule  againsl  hearsay  was  not 
then  generally  understood  by  th<-  legal  profession,  (v) 
Towards  the  end  of  the  eighteenth  century,  however, 
the  text  writers  speak  of  the  rule  as  established  ;  (x) 
but   while  recognized   as   obligatory,  if    was  not  e.\- 
tended  to  all  the  cases  which  fall  within  its  principle. 
Thus,   in    1770,  on   a   tii;il    for    assaull    with    intent   to 
ravi  li  a  very  young  child,  we  find   Buller,  J.  (himself 
the  author  of  a  treatise  on  Nisi  Prius),  adopting  the 

(/  -•,  115.  (/)  Gilb.  1  ••    [49,4ft  cv). 

(g)  1  Hale    !•.<.'     1.  635.  [u    Id.  1  50 

(r)  2  Hawk.   I'.  C  c.  46,  s.  1  j,  ed.  tg  11     St.  Tr.  342,  343. 

1716.  Hull.  Ni     294.  a  Fonb.  Eq. 

(j)   Bac.  Air.  T'.vi'l.  (K),  ed.  1736. 


i74  ENGLISH     LAW    OF    EVIDENCE. 

course  advised  by  Sir  Matthew  Hale  about  a  century 
before,  by  receiving  as  evidence  the  information 
relative  to  the  transaction  which  the  child,  who  was 
not  examined  as  a  witness,  had  given  to  two  other 
persons.  The  point  having  been  reserved,  this  course 
was  condemned  by  all  the  judges  ;  and  a  definite  rule 
relative  to  the  testimony  of  children  laid  down  for  the 
future.  (  r)  Notwithstanding  which,  it  is  said  that  on 
the  trial,  in  the  year  1808,  of  an  indictment  for  a  rape 
on  a  child  five  years  old,  the  same  objectionable  kind 
of  evidence  was  again  received  ;  but,  the  question 
having  been  reserved,  the  judges,  as  might  be  ex 
pected,  thought  the  evidence  clearly  inadmissible.  (Y) 
And  an  approved  treatise  of  the  present  day  informs 
us,  that  so  late  as  the  year  1790,  there  appears  to  have 
been  no  settled  rule  against  the  admission  of  hearsay 
Mi  nee,  with  regard  to  depositions  taken  before 
magistrates  (whether  upon  criminal  charges  or  upon 
other  occasions)  ;  and  several  of  the  exceptions  to 
this  rule,  which  were  formerly  allowed,  have  been 
much  narrowed  within  very  modern  times,  (a)  The 
authors  who  have  written  on  evidence  during  the  cur- 
rent century,  all  speak  of  the  rule  rejecting  hearsay 
evidence  as  established  and  notorious.  (<$) 

118.   Other    parts    of    the    law    of    evidence    are 
marked   by   similar  improvement  during  the  last  and 
it  centuries.     The  enlightened  principle,  that  ju- 
dicial  oaths  are  not  to  be  rejected  on  account  of  the 
witn<  Iding    erroneous    notions  on  religion,  pro- 

vided  a    mode   of  swearing  be  found  which  he  consi- 

1  I  cacl  n-  the  cases  there  referred  to  ;  R.  v.  Eris- 

cited    I'll,  well,  3  T.  R.707;  R.  v.  •  hadderton 
&    Am.                  and     i    Ph,  ','-::  R.  v.  Frystone,  Id.  54  ;  R 

loth  •  v.  Abergwilly,  Id.  63. 

•bed.      -  lb)  2  Ev.   Poth.  283,   2S4 :  and    see 

1  ..  and  any  of  the  modern  treatises. 


HISTORY    OF    ITS    RISE,     &C.  175 

dcrs  binding  on  his  conscience,  was  fully  established 
by  the  great  case  of  Omychund  v.  Barker,  in  1745.  (V) 
In  later  times  also,  relief  has  been  given  to  particular 
classes  of  persons,  who  object  on  conscientious 
grounds  to  taking  oaths  in  any  shape,  (d)  So,  the 
incompetency  of  witnesses  on  the  ground  of  interest, 
was  extracted  from  the  chaos  of  conflicting  authority 
in  which  it  lay  involved,  and  placed  on  at  least  an  in- 
telligible footing,  by  the  case  of  Bent  v.  Baker,  (e)  in 
1789,  and  other  decisions  of  that  period.  In  our  own 
time  this  latter  subject  has  attracted  much  attention — 
the  doctrine  of  the  incompetency  of  witnesses  having 
been  attacked  in  toto  as  improper  and  mischie- 
vous, (/")  and  being  now  almost  annihilated.  (^)  By 
various  recent  statutes  also,  many  species  of  docu- 
ments have  been  invested  with  the  character  of  pub- 
lic documents,  and  made  evidence  against  all  persons, 
of  the  faets  which  they  record  or  attest  ;  (//)  the  proof 
of  public  documents  in  general  has  bei  n  rendered 
more  simple  and  less  expensive;  (7)  proof  of  certain 
things  which  it  may  fairly  be  deemed  needless  to 
prove,  has  been  dispensed  with;  (k)  liberal  powers  of 
amending  variances  at  trials  have  been  vested  in  tribu- 
nals; (7)  an  1  more  effective  means  have  been  afforded 
to  litiganl  ,  of  getting  at  evidence  in   the  custody  or 


(c)    1    Alk.     2i  ;     Willcs,     538;     I  c.  99  ;   17  .V-    iS  Vict.  c.    104;  25  &  26 

Wils.  84.  Vi 

( ,/)  Infra,  bk.  2,  pt.  1,  ch.  2.  (x)  B  &  9  Vict.  c.  113  ;   [4  A   1  5  \ 

(e)   }    l.                         P.  H.  &  Am.  cc.  99  and    too;   1          [8               [04, 

Br.  74,  75.  ;■>.  277 ; 

Bern       !         Ev,  vol.  i.  x-15 ;  [9  Vict.  1                                si  Vict.  c. 

v>l.  v.  i    ■                        !         •    :  jt  s.  91 ;  31            Vict.  cc.  37  and     1  . 

1210  et   vi,    r  1   ed,               lis  >ub-  36  &  37  Vict.  c.  33, 

I                              infra,  bk.   2,   pt.    r,  1  1        1  1  ..    1 1  .     1. 

ch   2.  c.  42.    .  17  ;   1  j                 '   c.  99 ,  17  & 

{g)  Infra,  bk.  2.  pt.  r,  ch.  2.  18  Vict.  c.  104,  s.  2 

(h)  8  &  9  Vi  t        r6;   14  ••    1  -  .Vict.  hifra,\>\              1,  ch.  3. 


i;6  ENGLISH    LAW     OF    I'll  DUNCE. 

under  the  control  of  the  opposite  party.  (;;/)  And, 
lastly,  by  "The  Common  Law  Procedure  Act, 
1854,"  I  I  various  anomalies  have  been  removed  from 
the  forensic  procedure  affecting  our  law  of  evidence, 
and  the  system  itself  brought  more  into  harmony  with 
its  own  principles.  The  value  of  this  statute  was 
much  impaired  by  its  operation  being  confined  to  the 
evidence  given  in  civil  cases  ;  (0)  but  this  was  rem- 
edied by  the  24  &  25  Vict.  c.  66,  the  28  Vict.  c.  18, 
and  the  32  &  $5  Vict.  c.  68. 

While  these  alterations  must  on  the  whole  be 
viewed  as  improvements,  it  may  be  a  question 
whether  they  have  not  in  some  cases  been  carried  too 
far.  The  principle  which  attaches  so  much  faith  to 
public  documents,  for  instance,  rests  in  a  great  degree 
on  the  rule, — "  Omnia  praesumunter  rite  esse  acta," — 
a  maxim  unquestionably  just  when  restrained  within 
its  clue  limits,  but  which  loses  much  of  its  force  when 
tlr*  document  is  only  of  a  quasi  public  nature,  i.  e., 
drawn  up  by  individuals  acting  in  some  sense,  indeed, 
on  the  part  of  the  public,  but  having  a  personal  in- 
terest in  the  existence  of  the  facts  they  profess  to  re- 
cord or  attest.  And  there  is  another  maxim  equally 
valuable  which  must  not  be  lost  sight  of, — "  Res  inter 
alios  acta  alteri  nocere  non  debet."  In  one  instance, 
at  least — that  relating  to  entries  in  the  official  log- 
books of  merchant  ships — the  legislature  found  it 
necessary  to  retrace  its  steps  in  this  respect ;  (/)  and 

(m)   14    &     15     Vict.    c.   99,   s.     6;  96,5.27.     F.oth  these  statutes  are  re- 

17    &     1-     Vict.    c.    125,   ss.    50,     51  pealed  by  the   17  &   18  Vict.  c.  120; 

et  <-eq.  ;    36  &   37  Vict.    c.    66,    sched.  and  by  the  merchant  shipping  act,  17 

Rules  25-27.  &  18  Vict.  c.  104,  ss.  244  and  285,  the 

(»)  \  7  &   iZ  Vict.  c.  125  ;  ss.  22-27.  provisions  in  the   14  &  15  Vict.  c.  96, 

(o)  Sect.  103.  s_  2y>  as  to    the   admissibility  in    cvi- 

(/)  See  the  13  &   14  Vict.  c.  93,  ss.  dence  of  the  official  log-books  of  mer- 

85_93.  an'l   'be  alterations  introduced  chant    vessels,    have    been    re-enacted 

by  the  amending  act,  14  &  15  Vict.  c.  with  still  further  improvements. 


HISTORY    OF    ITS    RISE,     &C.  177 

several  cases  illustrate  the  danger  of  the  enactments 
in  the  8  &  9  Vict.  c.  16,  s.  28,  and  25- &  26  Vict.  c.  89,  s. 
37,  which,  in  an  action  by  a  railway  company  for  calls, 
render  the  register  of  shareholders  prima  facie  evi- 
dence of  the  defendant  being  a  shareholder,  and  of  the 
number  and  amount  of  his  shares.  (<^) 

119.  The  slow  development  of  the  law  of  evi- 
dence, compared  with  that  of  the  other  branches  of 
our  jurisprudence,  seems  a  natural  consequence  of  the 
general  principle,  that  in  every  nation  the  substantive 
rules  of  law  arrive  at  maturity  before  the  adjective. 
The  reason  is  obvious.  Rules  defining  the  rights  of 
persons  and  property,  or  creating  offenses  assigning 
their  punishment,  are  almost  coeval  with  the  exist- 
ence of  civil  society ;  while  the  procedure,  or  mode 
oi  enforcing  rights  and  carrying  the  sanctions  of  penal 
law  into  effect,  are  usually  left  for  a  long  time,  and  to 
a  certain  extent  ever  must  be  left,  to  the  discretion  of 
the  persons  intrusted  with  the  administration  of  jus- 
tice. But  our  modern  system  of  evidence  probably 
owes  iis  establishment  to  the  following  secondary 
causes: — 1.  The  independence  of  the  judges  of  the 
crown,  begun  by  the  12  &  13  Will.  3, c.  2,  s. 3, and  com- 
pleted by  the  1  Geo.  3,  c.  23,  which  naturally  had  a 
(■Mi  iderable  effeel  in  preventing  artificial  distinctions 
being  made,  between  the  proofs  in  state  prosecutions 
and  in  other  cases.  2.  The  allowing  i<>  persons  ac- 
cused  "i  1  n, 1  on  or  felony,  the  righl  of  being  defended 
l>\    counsel;  (r)  the  necessary  consequence  of  which 

(-/)  "  !     Railway    Company  tlieii   1  in  the  books  of  rail- 

v.   1  i      h.  ~~'i;   fJixoti    v.  way  compani 

H.  &  N.  686.     In  Darby         [r)  In   treason,  by  7  &  B  Will.  3,  c. 

t,  N   S.  497,499,  3,  s.   1  ;   and         1      >.   2,  c.  30.     Al- 

.  '  .   B.  said,  that  th 

many  instances  of  ilic  names  of  per-  not  allowed  torn  ke  then  full  defense 

■    been  without  by  counsel  until   the  6  &  7  Will.  4,  c. 

12 


178  ENGLISH    LAW     OF    EVIDENCE. 

was,  that  objections  to  the  admissibility  of  evider.ee 
were  much  more  frequently  taken,  the  attention  of 
the  judges  was  more  directed  to  the  subject  of  evi- 
dence, their  judgments  were  better  considered,  and 
their  decisions  more  fully  reported,  and  better  remem- 
bered. 3.  And  principally,  the  gradual  change  ef- 
fected in  the  constitution  of  the  common-law  tribunal 
for  the  trial  of  matters  of  fact.  As  Sergeant  Stephen 
observes,  "  It  is  a  matter  clear  beyond  dispute  (but  one 
that  has  perhaps  been  too  little  noticed  in  works  that 
t  --at  of  the  origin  of  our  laws)  that  the  jury  anciently 
consisted  of  persons  who  were  witnesses  to  the  facts, 
or  at  least  in  some  measure  personally  cognizant  of 
them  ;  and  who,  consequently,  m  their  verdict  gave, 
not  (as  now)  the  conclusion  of  their  judgment  upon 
facts  proved  before  them  in  the  cause — bur  their  testi- 
mony as  to  facts  which  they  had  antecedently 
known."  (,$•).  This  circumstance,  which  vi  a  key  to  so 
many  of  the  common-law  rules  of  pleading,  will  throw 


114,  yet  for  a  long  time  before  that  It  was  proposed  to  challenge  a  witness 
statute,  counsel  were  allowed  to  take  to  a  deed  because  he  was  cousin  to 
and  to  argue  legal  objections  for  the  plaintiff.  "  Et  non  allocatur,  for 
thern,  and  even  by  connivance  to  ex-  the  witnesses  are  not  challengeable, 
amine  and  cross-examine  witnesses.  because  the  verdict  shall  not  be  re- 
See  bk.  4,  pt.  1.  ceived  from  them,  bu.t  from  those  of 
(s)  Steph.  Plead.  145,  5U1  ed.  See  the  assize,  and  the  witnesses  were 
also  Id.  4S0,  and  d.  note  33.  To  sworn  simply  to  say  the  truth,  without 
his  authorities,  which  are  indeed  con-  saying  to  their  knowledge  (a  lour 
elusive  enough  on  this  matter,  we  add  estient),  for  they  ought  to  testify 
the  following :  It  was  agree!  by  the  nothing  but  what  they  see  and  hear." 
court,  in  Rolfe  v.  Hampden,  T.  34  The  same  was  held  in  the  12  Ass.  pi. 
Hen.  VIII.  Dyer,  53  b.  pi.  11,  that  the  11  &  41,  in  the  former  of  which  we 
plaintiff  in  attaint  could  not  give  more  are  told,  "  The  a-sizc  (the  jury)  came 
evidence  nor  call  more  witnesses  than  and  were  charged  to  say  the  truth  of 
he  had  given  to  the  petit  jury,  but  e  their  knowledge  (a  lour  science),  and 
contra  the  defend-in  t  might  give  more  the  witnesses  without  their  knowledge 
in  affirmance  of  the  first  verdict.  The  (sans  lour  scient),  to  say  the  truth  and 
functions  of  jurors  and  the  distinction  loyally  inform  the  inquest."  See  also 
between  them  and  other  witnesses  is  II  Ass.  pi.  19. 
strikingly  pointed  out  in  23  Ass.  pi.  11. 


HISTORY    OF    ITS     RISE,     &C. 


i/9 


considerable  light  on  our  system  of  judicial  evidence. 
That  the  jury  were  witnesses  of  a  particular  kind,  at 
least  as  late  as  the  reign  of  Edw.  I.,  and  that  they  had 
ceased  to  be  such  in  that  of  Charles  II.,  perhaps  much 
sooner,  is  indisputable.  But  in  the  meantime  the 
system  was  in  a  sort  of  transition  state  ;  (J)  .and  it  was 


(t)  The  authorities  in  ttie  last  note 
show  this  stood  in  the  timer  of  our  early 
Plant 

judgment  of  Vaughan,  C.  J.,  in  Bush- 
ell's  Case  (Vaugh.  135),  fixes  the  prac- 
tice in  the  Litter  part  of  the  seven- 
teenth century,  nearly  as  it  exists  at 
the  present  day.  The  difficulty  is  to 
trace  its  progress  in  the;  intervening 
peri'  cue   (De    Laud.    Leg. 

Ang.  cc.  26.  32),  towards  the  close  of 
the    fifteenth    centur)  '■  is    the 

jury  in  the  light  of  witnesses.  Vavisor, 
L.  a  little  later,  in  the  14M1  I  [en.  VII. 
29  h,  pi.  4,  2  Rol.  Abr.  677,  pi.  27  ; 
and  Brooke,  recorder  of  London,  ar- 
guendo, in  the  of  the  1 
century,  :  '  ;assa,  Plowd. 
12,  II,  4  Edw.  VI.,  siate  it  as  clear 
that    a    jury    may    find    theii 

S"  Staundf,   E\  C.  1 
the  stat.  1    Edw.  6,  c.  12,  "  Mes 

taut  tielx  parolx 
in   lenditement,  que 
qui    dun 

■  lour 
euidence,  aui 

I   ny 
ad   ascun   1 
eui<! 
trouer,  sils   1 

by   tli--   ■ 

l 

them  ; 

juncs  are  led  b]  wit- 


nesses, &c."  So  late  as  the  17  Jac.  I. 
(1619),  I  [chart,  C.  J.,  say-  (Darcy  v. 
Leigh,  Hob.  325),  that  he  "observed 
that  the  wisdom  of  the  common 
did  allow  none  to  be  a  juryman  in 
ajtatc  probanda,  that  was  not  forty- 
two  years  ;  for  he  tried  things  twenty- 
one  years  past.and  is  not  to  be  a  juror 
till  he  be  twenty-one  years."  And  in 
Style's  Prac.  Reg.  335,  4th  ed.,  "A 
jury  may  find  a  thing  which  is  not 
given  unto  them  in  evidence,  if  they  do 
know  it  of  their  own  knowledge  (M, 
22  Car.  B.  R.).  For  they  may  inform 
themselves  of  the  truth  of  the  fact 
they  are  to  try,  by  all  possible  and 
lawful  means  they  can,  and  are  not 
-.■  tied  to  the  evid  gv  en  at  the 

bar."    On  the  other  hand,  however,  we 
find  a  ca  1  .  Saville,  in  ( 

,  pi.  5  |,  Sum- 
mi  I  !  I      I  I       !  I  '     '      I      ■■ 

it  is  '  th  :  jud   e  "  1  Barkley) 

"did  put  ,   iy  twice  because 

the)  ir  verdict   cot 

'I  he  follow 
.11    1    I  ill) ,   l'i .  Reg.  552  : 
of  the  jur)  that   i      worn 
to  try  the 

mi 

tttei  in  1 
tion,  0  his  fello 

the   courl    .-  ■ 

■it    upon    : 

in,  and   l 

)    in    piivate 
unto  hi  t  Oct     1050, 

M  1  h.  B.  S„  &c").     And  in  Wood  v 
Gunston,    M.   r.655,  Sty.  466,  referred 


,Sc  ENGLISH     LAW     OF    EVIDENCE. 

not  until  the  final  determination  of  that  state  that  tli« 
rules  of  evidence,  which  depend  so  much  on  the 
functions  of  the  component  parts  of  the  judicial 
tribunal  being  clearly  defined,  could  assume  a  perma- 
nent and  consistent  form.  Other  causes  may  have 
contributed,  and  indeed  the  above  are  only  offered  in 
the  way  of  speculation. 

120.  But,  whatever  the  age  or  origin  of  our  sys- 
tem of  judicial  evidence,  it  is  on  the  whole  a  noble 
one,  and  may  fearlessly  challenge  comparison  with  all 
ethers.  Its  principal  features  stand  out  in  strong  and 
fine  relief,  whilst  its  leading  rules  are  based  on  the 
most  indisputable  principles  of  truth  and  common 
sense.  It  must  not,  however,  even  with  all  the  im- 
provements of  modern  legislation,  be  supposed  per- 
fect ;  on  the  contrary,  it  still  has  defects  which  its 
well-wishers  behold  with  regret.  The  application  of 
its  ureal  rules  having  occasionally  fallen  to  the  lot  of 
unskillful  or  careless  hands,  the  general  outline  has  been 
in  some  places  badly  filled  up,  lines  cross  that  ought  to 
bound  the  domain  of  principles  just  in  themselves, 
and  the  extension  of  which  to  cases  where  they  are 

in    Roe  V.    Hawkes,    I    Lev.  97,  a  in    our   books    for   the    court  to   take 

motion    for   a   new  trial   having   been  notice  of  miscarriages  of  juries,  and  to 

niaile  on  the  ground  of  excessive  clam-  grant  new  trials  upon  them  ;  and  it  is 

age-,  and  that    the    jury  had    favored  for  the  people's   benefit  that  it  should 

lintiff,    it    was    objected,    that  be    so,   for    a  jury  may  sometime;;,  by 

"after   verdict    the    partiality   of    the  indirect    dealing-,    be  moved    to   sule 

ght   not  to  I                ioned,  nor  with  one  party,  and  not  to  be  indiffer- 

is   there    any  precedent  for    it    in  our  ent  between  them,  but  it  cannot  lie  so 

v,  and   it  would   be  of  intended   of    the  court."      In    Uaily  V. 

juence  if  it  should  be  Boorne,  1  Sir.  392,  however,  the  court 

suffered,  and    the    greatness    of    the  said  the  power  of  granting  a  new  trial, 

dar.                     .   can   be  no  cause  for  a  even   superior  courts,   "  is   not  of  any 

new  trial  ;"   but  Glyn,  C.  J.,  said,  "  It  great  standing,  the  first  instance  of  any 

ji   of   the    court  in  new    trial    being    in    Stiles."       These 

some   <.                grant  a  new  trial,  but  authorities  are  far  from  exhausting  the 

this    n.                a  judicial    and  not  an  subject,  but  it  is  needless  to  discuss  it 

arbitrary  di-cretion,  and  it  is  frequent  further. 


HISTORY     OF    ITS    RISE,     &C.  181 

inapplicable  has  frequently  been  productive  of  in- 
justice, and  has  exposed  the  whole  system  to  censure 
Add  to  this,  that  the  comparatively  modern  growth 
of  the  system,  has  rendered  it  impossible  to  get  rid 
at  once  either  of  all  the  erroneous  principles,  or  of  the 
many  straight-laced  applications  of  sound  ones,  which 
were  established  by  our  ancestors  for  themselves,  or 
borrowed  from  the  civilians  of  the  middle  ages. 

121.  But  besides  these  imperfections,  which  per- 
haps may  be  looked  on  as  adventitious,  our  system 
has  faults  of  a  more  positive  kind.  Thus,  sufficient 
attention  was  not  paid  by  its  founders  to  official  pre- 
appointed evidence.  And  although  some  steps  have 
been  taken  in  this  direction — e.  g.,  by  the  6  cS:  7  Will. 
4,  c.  86,  and  subsequent  statutes  for  the  registration 
of  births,  marriages,  and  deaths;  by  the  1  &  2  Vict.  c. 
1 10,  s.  9,  and  the  32  &  $3  Vict.  c.  62,  s.  24,  requiring 
professional  attestation  to  cognovits  and  warrants  of 
attorney  to  confess  judgment;  by  various  clauses  of 
the  merchant  shipping  act,  17  &  18  Vict.  c.  104;  (//) 
and  by  the  20  cS:  21  Vict.  c.  jj,  s.  91,  establishing  de- 
positories for  the  wills  of  living  persons,  &C — there  is 
till  room  for  improvement;  and  the  principles 
adopted  in  the  laws  of  some  foreign  countries  on 
this  subject  might,  under  due  restrictions  and  with 
the  required  caution,  be  advantageously  introduced 
here.  Another  defeel  of  our  system  is  the  want  of 
some  cheap  and  expeditious  means  of  perpetuating 
timony.  "  Id  ob  ;i  rvandum,  aliquando  hodie  proba- 
tioner!] suscipi  ante  litem  contestatam,  si  reus  prsevi- 
deat,  conventum  hi,  el  periculum  sit,  ne  testes, 
quibus  exceptionem  suam  judici  probare  queat,  mori- 
aiiiiu  \el  alio  migrent,  vel  si  actor  metuat,  ne  sibi 
testimonium  propter  testium  morbum,  vel  absentiam 

(«)  Sects.  107,  [38,  175,  n.  3,  &c. 


ENGLISH    LAW    OF    EVIDENCE. 

eat.  hi  quod  doctores  vocant  probationem  in  per- 
petuam  rei  memoriam."  (v)  With  the  exception  of 
the  writs  of"warrantia  chartse,"  (x)  "curia  claudencUt" 
(y)  (both  abolished  by  the  3  <x.  4  Will.  4,  c.  27,  s.  36), 
and  a  few  other  instances,  the  common  law  did  not 
allow  legal  proceedings  on  the  mere  suspicion  of  in- 
tended wrong  or  breach  of  duty  ;  and  it  was  probably 
in  furtherance  oi  this  principle  that  it  provided  no 
general  mode  of  perpetuating  testimony,  for  which 
purpose  it  was  necessary  to  have  recourse  to  a  bill  in 
equity,  (z)  But  that  process  was  circuitous,  expen- 
sive, and  frequently  inadequate  ;  the  result  of  which, 
doubtless,  was  that  much  valuable  evidence  was  daily 
carried  to  the  grave.  It  is,  however,  much  easier  to 
detect  the  disease  than  to  point  out  the  fitting  rem- 
edy ;  and  the  difficulty  of  this  subject  lias  been  felt 
by  the  lawgivers  of  other  countries  as  well  as  our 
own.  (a)  Steps  in  advance,  however,  were  taken  by 
the  5  ec  6  Yict.  c.  69,  (d)  and  30  &  31  Vict.  c.  35,  s. 
6;  (/)  by  the  Merchant  Shipping  Act,  17  &  18  Vict, 
c.  104,  ss,  448,  449,  relative  to  taking  the  examina- 
tion of  p  1  1  ns  belonging  to  ships  in  distress;  by  the 
21  &  22  Vict.  c.  93,  which  enables  persons  toestablish 
their  legitimacy,  and  the  marriage  of  their  parents  and 
oth  from  whom  they  may  be  descended,  and  to 
prove  their  own  right  to  be  deemed  natural-born  sub- 
jects ;  and   by  the  annual   Mutiny  Act   (d)  as  to  the 

Pand.  pars  4,  §  125.  testimony    in    suits    touching   honors, 

(x)  1  .  N.  B.  134  K ,  3 1 1 1  ed  titles,  &c,  or    estates  or    interests   in 

127  I.  in  maig.  8th  ed.  property,  real  or  [    i   01  al,  the  right  or 

1                           Coram.    450;    Com.  claim   to  which  could    not    be  brought 

I                     ■>'    le  ;  2   Phill.   Ev.  453,  to  triaj  before  the  happi           of  some 

:  future  event. 

(a)  See  l>'>mat,  Lois  Civiles,  part  1,  (c)  Passed  to  <       nrl  tl      neansofper- 

'  l                              3-  petuating  testimony  in  criminal   cases. 

(6)  The    object    of    which    was    to  id)  See   the  act  of  the  present  ses- 

extern!    the    means    of    perpetuating  sion,  37  Vict.  c.  4,  s.  92. 


HISTORY    OF    ITS    RISE,     &C.  183 

mode  of  recording  a  soldier's  settlement.  And  now, 
by  the  "  Supreme  Court  of  Judicature  Act,  1873,"  (e) 
"  the  court  or  a  judge  may,  in  all  cases  where  it  shall 
appear  necessary  for  the  purposes  of  justice,  make  any 
order  for  the  examination  upon  oath,  before  any 
officer  of  the  court,  or  any  other  person  or  persons, 
and  at  any  place,  of  any  witness  or  person ;  and  may 
order  any  deposition  so  taken  to  be  filed  in  the 
court ;  and  may  empower  any  party  to  any  action  or 
other  proceeding,  to  give  such  deposition  in  evidence 
therein,  on  such  terms,  if  any,  as  the  court  or  a  judge 
may  direct." 

122.  Finally,  the  nomenclature  of  this  branch  of 
our  jurisprudence  is  somewhat  objectionable  ;  a 
greater  evil  than  might  at  first  si^ht  be  imagined, 
Among  the  abuses  of  words,  one  of  our  ablest  meta- 
physicians classes  their  unsteady  application,  and  an 
affected  obscurity  by  their  wrong  application.  (_/) 
And  Lord  Bacon  shrewdly  remarks,  "  Although  we 
think  we  govern  our  words,  and  prescribe  it  well  '  lo- 
quendum  ut  vulgus,  sentiendum  ut  sapientes,1  yet 
certain  ii  is  that  words,  as  a  Tartar's  bow,  do  shoot 
back  upon  the  understanding  of  the  wisest,  and 
mightily  entangle  and  pervert  tlie  judgment."  (g) 
vri.il  important  phrases  in  the  law  of  evidence, 
such     as     "presumption,"    "best     evidence,"    "written 

evidence,"  "hearsay  evidence,"  "parol  evidence,"  &c, 
have  two,  and  some  even  more  different  significa- 
tions; and  many  idle   arguments  and  erroneous   de- 

ion    i"  be  found  in  mil  bunks,  are  clearly  traceable 
to  this  ambiguity  of  language. 

45.  I  Bacon's  \.d\ imentof  Learn 

I  ocke  "ii  the   Human   Under-      in^,  \>k.  2. 
landing,  bk.  3,  ch.  .  6. 


BOOK   II. 


INSTRUMENTS   OF    EVIDENCE. 

PARAGRAPH 

Instruments  of  Evidence 123 

Three  kinds 123 

123.  By  "Instruments  of  Evidence"  are  meant 
the  media  through  which  the  evidence  of  facts,  either 
disputed  or  required  to  be  proved,  is  conveyed  to  the 
mind  of  a  judicial  tribunal,  (a)  The  word  "  instru- 
ment "  has,  however,  both  with  ourselves  and  the 
civilians,  a  secondary  sense,  i.  e.  denoting  a  particular 
kind  of  document.  (6)  These  instruments  of  evidence 
are  of  three  kinds : 

i.  "Witnesses" — persons  who  inform  the  tribunal 
respecting  facts. 

2.  "  Real  Evidence" — evidence  from  things. 

3.  "Documents" — evidence  supplied  by    material 

substances,  on  which  the  existence  of  things 
is  recorded  by  conventional  marks  or  sym- 
bols. Although  in  natural  order  the  subject 
of  real  evidence  precedes  that  of  witnesses,  it  will  be 
more  convenient  to  treat  of  the  latter  first,  as  it  is  by 
means  of  witnesses  that  both  real  and  documentary 
evidence  are  usually  presented  to  the  tribunal. 

(a)    "  Inslrumentorum     nomine    ea  habentur."       Dig.     lib.    22,     tit.    4, 

omnia  accipienda   sunt,  quibus   causa  1.  1. 

:  u  potest :  et  ideo  tarn  testimonia,  (l>\  See  infra,  pt.  3,  and  Ileinec.  ad 

quam   persona;    instrumentorum    loco  Pand.  pais  4,  §  126. 


WITNESSES.  185 


PART   I. 

WITNESSES. 

PARAGRAPH 

Witness — what 124 

Division  of  the  subject  ........         124 

124.  A  witness  may  be  defined,  a  person  who 
gives  evidence  to  a  judicial  tribunal,  (a)  The  term 
is  also  sometimes  used  in  the  sense  of  testimony,  as 
when  a  witness  is  said  to  be  "an  evidence"  for  or 
against  a  party.  This  form  of  speech  is,  however, 
passing  away,  and  is  rarely  used,  except  when  a  crim- 
inal is  admitted  to  bear  testimony  against  his  ac- 
complices, who  is  then  said  to  turn  "  Queen's  evi- 
dence." In  dealing  with  this  subject,  we  propose  to 
consider — 

1.  What  persons  are  compellable  to  give  evidence. 

2.  The    incompetency    of  witnesses  ;  or    who    are 

disqualified  from  giving  evidence.. 

3.  The  grounds  of  suspicion  of  testimony. 

(a)  "  Wi  Civilis.     The  silence  of  our  Law  Dic- 

ymons  with    the    Latin    "t<    li  ,"   the  tionaries  as  to  the  derivation  of  "wit- 

etymology  of  wh  omewhat  diffi-  1  remarkable.    Sir  Edward 

cult  to  trace.     A  I  1  1  Inst,  279)  says  il  comes  from 

Dictionary  ym.    in    1  the  Saxon   verb  "  weten "  (probably  a 

but    Stephan.     I  Ling.    Lat.  n  for   witan),    "Scire,  quia   <le 

1  ab  eo  d  ictus  quod  lueatur  quibus  sciunl  ri  debent,  el  omne 

itatum    ■  mentum   debet  1  ien- 

'lu.i  I  !,'  i  I  he    del  iv. r  1  11    l>y  this 

"  lit  "mil'  t.  lil>.  authoi    are    rathi  r    un  bul    the 

i,i/i  or  to  thi  1  1  "i      Bailey,     John 

latter  su  !        nil-nil,   and    Wei  re« 

by  most  of  the  civili  fin's  that    "w  ton    origin 

l    xicon  Juridicum ;  0  ami    we        II    have    the    phrase     'to 

icon  J  in  wit.'' 


i86  INSTRUMENTS    OF   EVIDENCE. 


CHAPTER   I. 


WHAT    PERSONS  ARE    COMPELLABLE    TO  GIVE    EVIDENCE. 


PARAGRAPH 

fienerally,  all  persons  are  compellable  to  give  evidence         .         .         .  125 

Exception — the  Sovereign      .........  125 

Privilege  of  witnesses  in  not  answering  particular  questions       .         .  126 
Questions    tending    to    criminate,    or    expose    to    penality    or 

forfeiture  ...........  126 

Qu<  stions  tending  to  disgrace •  130 

Questions  tending  to  subject  to  civil  proceedings        .         .         .  131 

125.  The  law  allows  no  excuse  for  withholding 
evidence  which  is  relevant  to  the  matters  in  question 
before  its  tribunals,  and  is  not  protected  from  disclo- 
sure by  some  principle  of  legal  policy.  A  person, 
therefore,  who,  without  just  cause  absents  himself 
from  a  trial,  at  which  he  has  been  duly  summoned  to 
attend  as  a  witness  ;  or  a  witness  who  refuses  to  give 
evidence,  or  to  answer  questions  which  the  court  rules 
proper  to  be  answered,  is  liable  to  punishment  for 
mtempt  (a)     An  exception   exists  in   the  case  of 

The  following  case  has  been  put  most  certainly  not"  (Pcnthain's  Draft 

in   illustration   of  the  universality  of  of  a  Code  for  the  Organization  of  the 

rule: — "Were     the     Prince     of  Judicial      Establishment     in     France, 

les,  the  Archbishop  of  Canterbury,  a.  d.    1790,   chap.    1,    tit.    1).      "We 

1   High  Chancellor  to  be  remember  one  case,"  says  a  writer  in  a 

:ig    in    the    same    coach,  while  a  legal   periodical,    "a    prosecution    for 

chimiie)  rand  a  barrow-woman  blasphemy,  in  which  the  defendant,  by 

ite  about  a  halfpenny  worth  way  of  showing  the  divided  state  of 

°f  and   the   chimuey-sweeper  opinion  on  theological  subjects,  actu- 

the  barrow-woman  were  to  think  ally  subpoenaed  the  bead-  of  all  the 

>n    them    for  their  religii  uasions  he  could  hear  of, 

evidence,  could  they  refuse  it?     No!  and    when    the    day    of    trial    arrived 


WITNESSES.  187 

The  Sovereign,  against   whom,  of  course,  no  compul- 
sory process  of  any  kind  can  be  used.  (6) 

126.  Various  matters  which  are  privileged  from 
disclosure  on  general  grounds  of  public  policy,  will 
be  considered  in  another  part  of  this  work,  (c)  But, 
besides  these,  the  law  extends  a  personal  privilege  to 
witnesses,  of  declining  to  answer  particular  questions, 
— a  privilege  based  on  the  principle  of  encouraging 
all  persons  to  come  forward  with  evidence  in  courts 
of  justice,  by  protecting  them  as  far  as  possible  from 
injury  or  needless  annoyance  in  consequence  of  so 
doing.  It  is,  therefore, a  settled  rule,  that  a  witness  is 
not  to  be  compelled  to  answer  any  question,  the  an- 
swering of  which  has  a  tendency  to  expose  him  to  a 
criminal  prosecution,  or  to  proceedings  for  a  penalty,- 
or  for  a  forfeiture  even  of  an  estate  or  interest.  "  Ne- 
mo tenetur  seipsum  aecusare."  (d)  "  Nemo  tenetur 
seipsum  prodere."  (<?)  This  is  laid  down  in  all  our 
books,  (/)  is  the  established  practice  of  the  courts, 
and  is  recognized  by  the  stat.  46  Geo.  3,  c.  37;  (^) 
26  &  27  Vict.  c.  29,  s.  7,  (See.  By  1  Will.  4,  c.  22,  s.  5 
and  6  &  7  Vict.  c.  82,  S.  7,  no  witness  examined  under 
a  commission  shall  be  compelled  to  produce  any  writ- 
ing or  other  documeril  that  he  would  not  be  compel- 
lable to  produce  ;it  a  trial,  &.C. ;  and  the  14  &  15  Viet. 

found  '                    !     huffied  up  ('n  See  infra,  chap.  2. 

her     in    ili'-     wailing-room — (lie  (c)   13k.  3,  pt.  2,  ch.  8. 

i|)   <>f    Canterbury   and    ihe  I  Hard.    139;    Win;.;.   Max.  486, 

11    h  Priest  of  I                         ol  the  Lofft.   Max.  361 ;  ro  Exch.  88  ;  3  H. 

rol.   25,  p.  364).  <\ 

i              1     N  <|">l  Bulst.   50 ;    1    I31ai  !..  1 '.  ?</> ;  3 

I                    board  th            in  Mai        G.  212 ;  10  Exch.  93 ;  a  Den. 

I!  I  it      W.I-         <    .    I 

n  li  in  in  this  1  ountry  by  Am.  I  114,  916  j 

means  of  a  subpoena  to  give  evid  I  I       §  1308,  5th  ed  ;  Stark  Ev 

mi   .1    trial,   Inn   uhi<  li    it    was    found      204,  4th  •  d. 
impoi  ible  to   lerve.     N<>u'h   LiP.     1  .  fri/n 

I   'i   p,   /■  . 


t88  INSTRUMENTS    OF    EVIDENCE. 

c.  99,  which  (sect.  2)  renders  the  parties  to  a  cause 
competent  and  compellable  to  give  evidence  according 
to  the  practice  of  the  court;  expressly  provides  (sect. 
3)  that  nothing  therein  contained  "shall  lender  any 
person  compellable  to  answer  any  question  tending  to 
eliminate  himself."  ( // )  The  19  &  20  Vict.  c.  113,  s. 
3, — for  taking  evidence  here  in  relation  to  certain 
matters  pending  before  foreign  tribunals, — enacts  that 
every  person  examined  under  it,  "  shall  have  the  like 
right  to  refuse  to  answer  questions  tending  to  crimin- 
ate himself,  and  other  questions  which  a  witness  in 
any  cause,  &c.,  would  be  entitled  to ;  "  and  a  similar 
provision  is  contained  in  the  22  Vict.  c.  20,  s.  4, — foi 
taking  evidence  in  proceedings  pending  before  tribu- 
nals in  the  Queen's  dominions,  in  places  out  of  theii 
jurisdiction, — with  reference  to  persons  examined 
under  that  act.  And  lastly,  it  is  provided  by  the  32 
&  33  Vict.  c.  68,  s.  3,  that  no  witness  in  any  proceed- 
ing, whether  a  party  to  the  suit  or  not,  shall  be  liable 
to  be  asked  or  bound  to  answer  any  question,  tending 
to  show  that  he  or  she  has  been  guilty  of  adultery, 
unless  such  witness  shall  have  already  given  evidence 
in  the  same  proceeding  in  disproof  of  his  or  her 
alleged  adultery,  (z) 

Whether  a  husband  or  wife  is  bound  to  answer 
questions  tending  to  criminate  each  other  seems  un- 
settled, (jy 

uliar    language   of   this  (/)  The   legislature   has  also  recog- 

•     the  question,  nized   the  principle  on  several   othei 

wh<     er,  when    a    party    to    a    suit    is  occasions,  either  by  depriving  partial 

examined  as  a  wil  ,  privilege  in  lar  witnesses  of  the  privilege,  or  by  an 

not   more  act  of  indemnity  rendering  it  valueless 

limited   than    thai   of  other  witnesses,  to   them   (Tayl.  Ev.   §    1310,5th  »d.) 

ana  e  the      where  various  instances  are  collected. 

ansv"  miriate  nim.  (/l  s,.,.   ,.    v  The   Inhabitants  o( 

Tayl.  Ev.  rJ  1217,  5th  -II;  w-      Cliviger,  2  T.  R.  263  ;  R.  v.  The    In 

s,  n  I.xch.210;  1  Juris  .  N.s.  600.        habitants  of  All  Saints,  Worcester,  6 
State  v.  Briggs,  9  R.  I.  361  ;  Commonwealth  v.  Patterson, 


WITNESSES.    ,  189 

127.  In  order  to  entitle  a  witness  to  refuse  to 
answer  a  question,  on  the  ground  that  it  might  tend 
to  eliminate  him,  the  question  need  not  be  such 
that  the  answer  thereto  would,  itself,  be  evidence 
against  him  on  a  criminal  charge  ;  it  is  sufficient  if  the 
answer  might  furnish  a  link  in  a  chain  of  evidence, 
which  might  implicate  him  in  such  a  charge.  (/')  In 
one  case,  indeed,  (/)  Pollock,  C.  B.,  went  further; 
laymg  it  down,  incidentally, — for  it  was  unnecessary 
to  the  decision  of  the  point  before  the  court, — that  it 
did  not  at  all  follow,  that  the  witness  who  is  privileged 
from  answering  must  be  guilty  of  an  offense  ;  that  a 
man  may  be  placed  in  such  circumstances  connected 

M.   &    S.    194,    200,    per    Bayley,    J. ;  701,  per  Alderson,  B.  ;  The   People  v. 

CartwrLlit  v.  Green,  S  Ves.  405,  410.  Mather,    4    Wend.    253  ;    Paxton     v. 

{k)    Per     Blackburn,     J.,    Keg.    v.  Douglas,    19  Ves.   226,  227  ;  Short  v. 

I  Inline,    L.   Rep.,   5   Q.    B.   377,  3S4.  Mercier,  3  Mac.  &  G.  21S  ;   Mitford's 

And   see   Fisher  v.  Ronalds,  12  C.  B.  PI.  359,  5th  ed. 

765,   per    Maule,    J.  ;  Osborn    v.  The  (/)  Adams  v.  Lloyd,  4  Jurist,  N.  S. 

London     Dock     Company,    10    Exch,  593;  S.  C.  3  !I.  &  N.  363. 

8  Phil.  (Pa.)  609:  Same  v.  Paynter,  Id.  610;  Same  v.  Reed, 
Id.  385  ;  Ware  v.  State,  3s  N-  J-  •-•  553;  Taulman  v.  State,  37 
I"d.  353.  In  civil  actions,  see  Davis  v.  Plymouth,  45  Vt.  492; 
Craig  v.  Brendel,  69  Pa.  St.  153;  Bennefield  v.  Hypres,  38  Ind. 
v.  Pea,  35  Id.  387  ;  Barker  v.  McAuley,  4  Heisk.  424; 
Dellinger's  Appeal,  71  Pa.  St.  425 ;  Robinson  v.  Chadwick,  22 
Ohio  St.  527  ;   Hicks  v.  Bradner,  2  Abb.  (N.  Y.)  A  pp.  I  >ec.  362 ; 

uthwick  v.  Southwick,  49  N.Y.  510;  Buck  v.  Ashbrook,  51" 
Mo.  - -,<,  ;  Sprading  v.  Conway,  hi.  51;  Ruth  v.  Ford,  9  Kan. 
17;  Call  v.  Byram,  37  [nd.  499  ;  Stanley  v.  Stanley,  36  Id.  445 ; 
S  ibrook  v.  Brady,  17  Ga.650;  O'Connor  v.  Hartford  Fire 
In  (  ...  1  Wi  ..  1'. 1.  In  matters  between  husband  anil  wife, 
■  .M  v.  ,\  nderson,  9  Kan.  112 ;  Barringer  v.  Barringei 
69  V  C.  179.  A  husband  i:  a  •  ompeteni  witness  to  prove  his 
wife's  imp  (hi.);  Inn  nol  to  prove  hei  adultery  (Cook  v. 

ik,  r>  '  '•'.  3    •).     I  n  divon  e  1  a  ie  .  in   Penni  ylvania,  a  hus- 
band or  wife  ma  ify  in   his  1  >i    hei    fa^  •  ir,  but  cannot   be 

npelled  to  tet  tifj  tinsl  them  ■■>•■■  e  ;  and  i  ee  the  argu- 
ments "t  el  and  opinion  ol  Neilson,  J.,  in  the  Tilton- 
1 ;  e<  her  (  to  the  admi  ibilit)  oi  te  timony  ol  plaintiffs 
wife  on  the  part  of  the  defendant . 


IQO 


FNSTRUMEA  EVIDENCE. 


with  the  commission  of  a  crime,  that  if  he  disclose 
them  he  would  be  fixed  on  by  his  hearers  as  the 
guilty  person,  and  he  might  not  be  able  to  explain 
those  circumstances,  so  that  the  rule  is  not  always  the 
shield  of  guilt — it  maybe  the  protection  to  innocence. 
In  the  absence  of  more  distinct  authority,  it  is  not 
easy  to  say  whether  this  notion  is  well  founded.  Pos- 
sibly such  cases  may  fall  within  one  or  both  of  the 
principles,  "  Nemo  tenetur  seipsum  accusare,"  (;/*) 
"  Nemo  tenetur  se  infortuniis  et  periculis  cxponere  ; " 
(n)1  in  furtherance  of  the  latter  of  which  principles, 
a  party  under  the  necessity  of  making  continual  claim 
to  lands,  was  not  bound  to  approach  them  more 
closely  than  was  consistent  with  his  personal  safety.  (0) 
123.  When  the  grounds  of  privilege  are  before 
the  court,  it  is  for  the  court,  and  not  for  the  witness 
or  party  interrogated,  to  decide  as  to  their  suffi- 
ciency. (/>)  But  much  difference  of  opinion  has  been 
expressed  of  late  years,  as  to  whether,  if  a  witness  or 
party  interrogated  objects  to  answering  a  particular 
question,  alleging  on  oath  that  the  answer  would  tend 
to  expose  him  to  criminal  proceedings,  penalty,  or  for- 
feiture, the  court  is  bound  to  disallow  the  question, 
even  though  it  does  not  see  in  what  possible  way  the 
answer  to  it  could  have  that  effect.  This  question 
arose  in  R.  v.  Garbett,  (tf)  on  a  case  reserved,  which 
was,  howev<  r,  ultimately  decided  on  another  point. 
In  Fisher  v.  Ronalds,  (r)  Jervis,  C.  J.,  and  Maule,  J. 
laid    flown   in   the  most  unequivocal  terms,   that  the 

.'   t26.  Gex  &  J.  320;  Ex   parte    Fein:n 

;  b.  10  C.  P.,  X.  S.  3,  40,  per  Willes,  .1. 
;  i    Den.  C.  C.  236  ;  2  Car.  &    K. 

(/»)  In    re    Thi  uth  474. 

Amcric.-'i:    I  '  .on,  r2  C.  P.  762  ;  22  L.  J.,  N.  S,C 

27Beav.  474  ;  affirmed  on  appeal,  1  I  >e  P.  62  ;  17  Jurist,  393. 

r.  p.  175. 


WITNESSES.  191 

court  is  bound  by  the  statement  on  oath  of  the  wit- 
ness ;  and  their  language  was  cited  with  approbation 
in  Adams  v.  Lloyd  (s)  by  Pollock,  C.  B.,  but  with 
this  qualification,  that  the  judge  must  be  perfectly 
certain  that  the  witness  is  not  trifling  with  the  author- 
ity of  the  court,  and  availing  himself  of  the  rule  of 
law,  in  order  to  keep  back  the  truth,  having  in  reality 
no  ground  whatever  for  claiming  the  privilege.  The 
whole  doctrine  was,  however,  distinctly  denied  by 
Parke,  B.,  in  Osborn  v.  The  London  Dock  Company, 
(7),  and  by  Stuart,  V.  C,  in  Sidebottom  v.  Adkins, 
(«)  the  latter  of  which  is  an  express  decision  on  the 
subject,  the  others  being  only  dicta  unnecessary  for 
the  determination  of  the  cases  in  which  they  are 
found.  It  was  also  gravely  doubted  by  Willes,  J.,  in 
Ex  parte  Fernandez,  (v)  In  support  of  the  exclusive 
right  of  the  witness  or  party  interrogated,  it  was  urged 
that,  as  he  alone  can  know  in  what  way  the  answei 
to  any  particular  question  could  affect  him,  the  requir- 
ing him  to  explain  this  to  the  court  would  be  a  virtual 
denial  of  tin-  privilege;  seeing  that  i:  is  impossible 
to  affirm,  a  priori,  that  any  imaginable  fact  can  under 
no  po  ible  circumstances  whatever  become  eviden- 
tiary, either  immediately  <>r  mediately,  1  f  any  oilier 
That  ■'  ,  when  a  witness  called  on  to  produce  docu- 
ments under  a  Subpoena  duces  tecum,  swears  that  (hey 

are  his  muniments  of  title,  the  court  always  excuses 
him  from  producing  them,  (w)  a  similar  rule  ought 
to  prevail  when, under  an  ordinary  subpoena,  a  witm 
is  aski  i  questions,  the  answers  to  which  may  be 
equally  or  <  ven  more  injurious  t<>  him.  On  the  other 
hand,  however,  it  is  to  be  remembered  that   the  judge 

(s)  3  H.&  N.361,  362;  27  L.J..N.         («)  3  1  r,  632. 

S.,  I  v  1  fui  ,.N.  S.  ;  [v)  to  <     1 !.,  ] 

(/)  10  !  .  1  Jur.,  N.  S  93.  1  131b,  ;  h  «d. 


:92  INSTRUMENTS    OF    EVIDENCE. 

is  the  prop*  r  authority  to  determine  all  questions  rela- 
tive to  the  n  ception  of  testimony  ;  and  consequently 
to   decide  whether,  taking  into  consideration  all  the 
circumstances,  including  the  demeanor  of  the  person 
who  claims  the  privilege,  an  answer  to  any  particular. 
question  ought  to  be  exacted;  (x)  and  that,  to  allow 
the  witness  or  party  interrogated  the  exclusive  right 
contended  for,  would  not  only  introduce  an  anomaly 
into  the   law  of  evidence,  but  enable- every  witness, 
who  might  be  swayed  by  improper  motives,  and  be 
indifferent  to   his  reputation,  easily,  and  with  perfect 
impunity,  to    evade   giving   any    evidence    whatever. 
The   position   that  a  witness,  or   party  interrogated, 
ought  not  to  be  compelled  to  show  in  what  precise 
way  a  question  might  ^injure  him,  however  sound  in 
itself,  falls  far  short  of  establishing  that  he  is  the  ex- 
clusive judge,  not  only  as  to  the  existence  of  the  facts 
which  might  expose  him  to  injury,  but  also  as  to  the 
effect  of  those  facts  in  point  of  law.     Besides,  it  is  a 
mistake   to   suppose   that  every  unfounded   objection 
raised  by  a  witness  to   a  question,  must  necessarily 
have  its  foundation  in  mala  fides;  it  may  be  the  re- 
sult of  idle  terror  or  scruples,  to  give  effect  to  which 
would   be  a  violation  of  the  well-known  principle  of 
law,  that  the  fear  which  excuses  an  act  must  not  be  a 
vain  fear,  but  a  reasonable  one,  "Qui  caderc  potest  in 
virum  constantem."  (y)     The  rule  that  a  witness  will 
not  be  compelled  to  produce   documents,  which   he 
swears  are  his  muniments  of  title,  is  in  a  great  degree 
the    offspring   of  necessity;  being  based   on  the  im- 
mediate and   irreparable  mischief  which  would  ensue, 
from    an    erroneous    decision   of  the  judge  as  to  the 
nature  of  the  documents.     Still  we  apprehend,  that  if 

(*)  The  PeopU  v.  Mather.  4  Wend.  (y)  Co.  Litt.  253  b  ;  LoflVs  Max.  440. 

*:29.  254.  See  also  Dig.  lib.  50,  tit.  17,  1.  184. 


WITNESSES.  193 

it  could  be  clearly  shown  that  the  statement  of  the 
witness  as  to  their  character  was  untrue,  the  judge 
would  compel  their  production. 

I28.'::'  The  whole  question  came  at  last  before  the 
Queen's  Bench  in  Reg.  v.  Boyes,  (z)  where  the  dicta 
in  Fisher  v.  Ronalds  were  distinctly  overruled  by  an 
unanimous  decision  of  that  court.  That  was  an  in- 
formation filed  by  the  attorney-general,  in  pursuance 
of  a  resolution  of  the  house  of  commons,  for  bribery 
at  an  election  for  members  to  serve  in  parliament } 
and  at  the  trial,  Martin,  B.,  held  that  a  witness  who 
had  been  pardoned  for  his  share  in  the  transaction, 
was  bound  to  answer  questions  concerning  it.  On  this 
ruling  being  questioned  before  the  court  in  banc,  con- 
sisting of  Coekburn,  C.  J.,  Wightman,  Crompton,  and 
Blackburn,  JJ.,  it  was  argued  ttiat  the  witness  was  in 
jeopardy  by  being  compelled  to  answer;  for  although 
the  crown  could  pardon  offenses  as  regards  itself,  the 
witness  was  still  liable  to  an  impeachment  by  the 
house  of  commons,  against  which,  by  1  2  &  13  Will.  3, 
c.  2,  s.  3,  no  pardon  of  the  crown  could  be  pleaded. 
The  case  was  argued,  and  Fisher  v.  Ronalds  and  some 
other  authorities  were  referred  to.  After  time  taken 
to  con  ider,  the  following  judgment  was  delivered  by 
I  ickburn,  C.  J.,  in  the  name  of  himself  and  the  other 
members  of  the  court :  "  li  was  contended  thai  a  bare 
possibility  of  legal  peril  was  sufficient  to  entitle  a 
witness  to  protection:  nay,  further,  thai  'the  witness 
was  the  sole  judge  as  to  whether  his  evidence  would 
bring  him  into  danger  of  the  law:  and  thai  the  state- 
mi  Hi  of  his  belief  to  thai  effect, if  nol  manifestly  made 
maid  fide,  should  be  received  c<  inclusive.  W'ii  h  I  he 
latter  of  these  propositions  we  are  altogether  unable 
to  concur.     Upon  a  review  of  the  authorities,  we  are 

(l)    1   15.  &  S.   311. 
13 


194  INSTRUMENTS    OF    EVIDENCE. 

clearly  of  opinion  that  the  view  of  the  law  propounded 
by  Lord  Wensleydale,  in  Osborn  v.  the  London  Dock 
Company,  (a)  and  acted  upon  by  vice-chancellor 
Stuart,  in  Sidebottom  v.  Adkins,  (b)  is  the  corrcet 
one  ;  and  that,  to  entitle  a  party  called  as  a  witness  to 
the  privilege  of  silence,  the  court  must  sec,  from  the 
circumstances  of  the  case  and  the  nature  of  the  evi- 
dence which  the  witness  is  called  to  give,  that  there  is 
reasonable  ground  to  apprehend  danger  to  the  witness 
from  his  being  compelled  to  answer.  We  indeed  quite 
agree  that,  if  the  fact  of  the  witness  being  in  danger 
be  once  made  to  appear,  great  latitude  should  be 
allowed  to  him  in  judging  for  himself  of  the  effect  of 
any  particular  question:  there  being  no  doubt,  as  ob- 
served by  Alderson,  B.,  in  Osborn  v.  The  London 
Dock  Company,  that  a  question  which  might  appear 
at  first  sight  a  very  innocent  one,  might,  by  affording 
a  link  in  a  chain  of  evidence,  become  the  means  of 
bringing  home  an  offense  to  the  party  answering. 
Subject  to  this  reservation,  a  judge  is,  in  our  opinion, 
bound  to  insist  on  a  witness  answering,  unless  he  is 
satisfied  that  the  answer  will  tend  to  place  the  witness 
in  peril.  Further  than  this,  we  arc  of  opinion  that  the 
danger  to  be  apprehended  must  be  real  and  appre- 
ciable, with  reference  to  the  ordinary  operation  of  law 
in  the  ordinary  course  of  things — not  a  danger  of  an 
imaginary  and  unsubstantial  character,  having  reference 
to  some  extraordinary  and  barely  possible  contingi  ncy, 
so  improbable  that  no  reasonable  man  would  suffer  it 
to  influence  his  conduct.  We  think  that  a  merely 
remote  and  naked  possibility,  out  of  the  ordinary 
course  of  the  law,  and  such  as  no  reasonable  man 
would  be  affected  by,  should  not  be  suffered  to  ob- 
struct the  administration  of  justice.     The  object  of  the 

(a)  10  Exch.  6g3,  701.  (6)  3  Jur.,  N.  S.  631. 


WITNESSES.  195 

law  is  to  afford  to  a  party,  called  upon  to  give  evi- 
dence in  a  proceeding-  inter  alios,  protection  against 
being  brought  by  means  of  his  own  evidence  within 
the  penalties  of  the  law.  'But  it  would  be  to  convert 
a  salutary  protection  into  a  means  of  abuse,  if  it  were 
to  be  held  that  a  mere  imaginary  possibility  of  danger, 
however  remote  and  improbable,  was  sufficient  to 
justify  the  withholding  of  evidence  essential  to  the 
ends  of  justice.  Now,  in  the  present  case,  no  one  serious- 
ly supposes  that  the  witness  runs  the  slightest  risk  of 
an  impeachment  by  the  house  of  commons.  No  in- 
stance of  such  a  proceeding  in  the,  unhappily  too 
numerous,  cases  of  bribery  which  have  engaged  the 
attention  of  the  house  of  commons  has  ever  occurred, 
or,  so  far  as  we  are  aware,  has  ever  been  thought  of. 
To  suppose  that  such  a  proceeding  would  be  applied 
in  the  case  of  this  witness  would  be  simply  ridiculous; 
more  1  tally  as  the  proceeding  by  information  was 
undertaken  by  the  attorney-general  by  the  direction 
of  the  I"  use  itself,  and  it;  would  therefore  be  con- 
trary to  all  justice  to  treal  the  pardon  provided,  in  the 
into '  -i  of  the  prosecution,  to  ensure  the  evidence  of 
the  witness,  as  a  nullity,  and  to  subject  him  to  a  pro- 
id  ing  by  impeachment.  1 1  appears  to  us,  therefore, 
thai  the  witness  in  this  case  was  not,  in  a  rational 
point  of  view,  in  any,  the  slightest,  real  danger  from 
the  evidence  he  was  called  upon  to  give,  when  pro- 
tected  by  the  pardon  from  all  ordinary  legal  proceed- 
ings; and  that  it  was  therefon  the  duty  of  the  presid- 
ing judge  to  compel  him  to  answer." 

129.   It   used   t<>   be  considered,  thai   tin-  witn 

who  intended  t<>  claim  the  privilege  of  no1  answering 

<|i:  "I    this   n  iture,   was   bound    t<»   claim   his 

pi ivil<  i  tnd  1  hat,  if  he  began  ;i  ci iminative 

tatemenl   when  he  might  have  refused  to  make  it,  he 


196  INSTRUMENTS     OF    EVIDENCE. 

\  is  compellable  to  go  on  with  it,— a  rule  probably 
established,  with  the  view  of  preventing  witnesses 
from  converting  the  privilege  given  by  law  for  their 
own  protection,  into  a  means  of  serving  one  of  the 
litigant  parties,  by  setting  up  the  privilege  when 
their  evidence  began  to  tell  against  him.  But  in  R.  v. 
Garbett  (d)  a  majority  of  the  judges  overruled  the 
old  notion,  and  held  that  the  witness  might  claim  his 
protection  at  any  stage  of  the  inquiry. 

130.  Whether  a  witness  is  compellable  to  answer 
questions  having  a  tendency  to  disgrace  him  ;  as,  for 
instance,  whether  he  was  ever  convicted  of  an  offense, 
or  had  suffered  some  infamous  punishment,  or  been  in 
jail  on  a  criminal  charge,  is  a  great  question  in  oui 
books,  and  one  on  which  any  attempt  to  reconcile  the 
authorities  would  be  perfectly  hopeless.  It  is  indeed 
settled  that  he  must  answer  if  the  question  is  relevant 
to  the  issue  in  the  cause;  (c)  the  doubt  is,  when  it 
relates  to  collateral  matters,  and  is  only  put  in  order 
to  test  his  credit.  The  arguments  pro  and  con.  are 
thus  stated  in  a  work  of  authority  (/)  "There 
seems  to  be  no  reported  case,  in  which  this  point  has 
been  solemnly  determined  ;  and,  in  the  absence  of 
all  express  authority,  opinions  have  been  much 
divided.  The  advocates  for  a  compulsory  power  in 
cross-examination  might  argue,  that  as  parties  are 
frequently  surprised  by  the  appearance  t of  a  witness 
unknown  to  them,  or,  if  known,  entirely  unexpected, 
without  such  power  they  would  have  no  adequate 
means  of  ascertaining  what  credit  is  due  to  his  testi- 
mony ;  that  on  the  cross-examination  of  spies,  in- 
formers, and  accomplices,  this  power  is  more  particu- 
larly  necessary  :    and   that  if    a   witness  may  not  be 

(d)  1  Den.C.C.  236  ;  2  Car. &  K. 495.      &  Am.  Ev.  916,  917. 

(e)  2   Phill.   Ev.  494,  10th  ed.  ;   Ph.  (/)  2  Phill.  Ev.  494   10th  ed. 


WITNESSES.  197 

questioned  as  to  his  character  at  the  moment  of  trial, 
the  property  and  even  the  life  of  a  party  must  often 
be  endangered. — Those,  on  the  other  side,  who  main- 
tain that  a  witness  is  not  compellable  to  answer  such 
questions,  may  contend  to  the  following  effect.  They 
say  the  obligation  to  give  evidence  arises  from  the 
oath  which  every  witness  takes ;  that  by  this  oath  he 
binds  himself  only  to  speak  touching  the  matters  in 
issue-;  and  that  such  particular  facts  as  these — whether 
the  witness  has  been  .in  jail  for  felony  or  suffered  some 
infamous  punishment,  or  the  like — cannot  form  any 
part  of  the  issue,  as  appears  evident  from  this  con- 
sideration, that  the  party  against  whom  the  witness  is 
called,  would  not  be  allowed  to  prove  such  particular 
facts  by  other  witnesses.  They  may  argue,  further, 
that  it  would  be  an  extreme  grievance  to  a  witness,  to 
be  compelled  to  disclose  past  transactions  of  his  life, 
which  may  have  been  since  forgotten,  and  to  expose 
his  character  afresh  to  evil  report  and  obloquy,  when 
perhaps  by  subsequent  conduct  he  may  have  re- 
covered the  good  opinion  of  the  world  ;  that  if  a 
witness  is  privileged  from  answering  a  question, 
though  relevant  to  the  matters  in  issue,  because  it 
may  tend  to  subject  him  to  a  forfeiture  of  property, 
with  much  mor<  reason  ought  he  to  be  excused  from 
answering  an  irrelevant  question,  to  the  disparage- 
ment and  forfeiture  ot  his  character;  that  in  the  case 
of  accomplices,  in  which  this  compulsory  power  of 
cross-examination  is  thought  to  be  more  particularly 
necessary,  the  power  may  be  properly  conceded  to  a 
tain  extent,  because  accomplices  stand  in  a  peculiar 
situation,  being  admitted  to  give  evidence  only  under 
the  implied  condition  of  making  a  lull  and  hue  con- 
fession of  the  whole  truth;  but  even  accomplices  are 
not  to  be  questioned,  in  their  cross-examination,  as  to 


i9S  INSTRUMENTS     OF    EVIDENCE. 

other  offenses  in  which  they  have  no1  been  concerned 
with  the  prisoner  f  lastly,  that  with  respect  to  wit- 
nesses, in  general,  the  best  course  to  be  adopted,  both 
in  point  of  convenience  and  justice,  is  to  allow  the 
question  to  he  asked,  at  the  same  time  allowing  the 
witness  to  shelter  himself  under  his  privilege  of  re- 
fusing to  answer,  and,  if  he  refuses,  to  leave  it  to  the 
jury  to  draw  their  own  conclusion  as  to  his  motives 
for  such  refusal.  Although  there  appears  not  to  be 
any  express  decision  on  the  point,  whether  a  witness 
is  compellable  to  answer  questions  degrading  to  his 
character,  yet  several  opinions  have  been  pronounced 
by  judges  of  great  authority,  from  which  it  may  be 
collected  that  the  witness  is  not  compellable  to  an- 
swer such  questions."  In  support  of  this  view  the 
following  authorities  are  then  cited:  Cook's  case,  (g) 
Sir  J.  Friend's  case,  (//)  Layer's  case,  (?)  R.  v.  .Lewis, 
(/)  MacBride  v.  M ac Bride,  (/)  and  R.  v.  O'Coigly, 
O'Conner,  and  others,  (m)  The  first  three  of  these 
cases— -the  latest  of  which  was  decided  in  1722 — are 
taken  from  the  State  Trials;  and  the  second  is  only  a 
dictum;  for  the  point  was  whether  a  witness  was 
hound  to  say  was  he  a  Roman  Catholic,  his  an- 
swering which  in  the  affirmative  would,  in  those 
days,  have  exposed  him  to  a  penalty.  («)  The 
fourth  and  fifth  prove  too  mnch,  for  in  them  the 
judges  ruled  that  questions  such  as  we  are  now  con- 
sidering could  not  be  put, — a  position  clearly  errone- 
ous, (o)  And  in  the  sixth,  it  is  not  easy  to  collect 
on   what   precise   ground   the    decision   of    the   court 

(.?■)  13  Ho.  St.  Tr.  334.  («)  See  R.  v.  Lord  George  Gordon, 

(h)  Id.  f6,  17.  2  Dougl.  593. 

(»)  ''■■  W.  161.  (o)  Ph.  &  Am.    Ev.  920  et  seq. ;  2 

{k)  4  Esp.  225.  Phill.  Ev.  497  et  seq.,  loth  ed. ;  Stark 

(/)  Id.  242.  Ev.  213,  4th  ed. ;  Ros.  Crim.  Ev.  166, 

(«*)  26  Ho.  St.  Tr.  1353.  4th  ed. 


WITNESSES.  199 

proceeded,  as    they  do  not  assign  any  reasons  for  it. 
To  these  arc   commonly  added   Dodd  v.  Norris,  (/) 
R.  v.  Hodgson,  (q)  and  Millman  z>.  Tucker;  (r)  but  in 
the  first  two  the  question  involved  a  charge  of  forni- 
cation, the  answer  to  which  might  have   rendered  the 
party  liable  to  be  proceeded  against  in   the   Ecclesi- 
astical Court.     The  same  view  is  also  supported  by 
the  old  cases  in  the  State  Trials,  of  Reading  (s)  and 
the    Earl    of   Shaftesbury.  (J)     On    the    other   hand, 
however,    there    are    several    modern    authorities    ex- 
pressly in  point  the  other  way  ;  viz.,  R.  v.  Edwards,  (71) 
Frost  v.  Ilolloway,  (x)  and  Cundcll  v.  Pratt,  (y)  to 
which  may  be  added  Roberts  v.  Allatt ;  (z)  and   these 
are  supported  by  other  cases,  (a)     It  seems,  indeed, 
that,  in  strictness,  the  court  can  compel   a  witness  to 
answer    under  such   circumstances,   although    in    the 
exercise  of  its  discretion  it  will  not  do  so,  unless  the 
ends    of  justice  clearly    require  it.     But    this   seldom 
happens;  as  the  object  of  the   cross-examining  party, 
is,  in    general    sufficiently    attained    by    putting    the 
question;  for  the  silence  of  a  person,  to  whom  in  his 
hearing   a   crime    or    disgraceful  act   is   imputed,  is  in 
many    instances    tantamount    to    confession.      "No 
doubt "  says  a  modern  work  on   Evidence,  (£)  "cases 
may  arise  where  the  judge,  in  (he  exercise  of   his  dis- 
cretion, would  very  properly  interpose   to   protect   the 
wit  11        from    unnecessary  and    unbecoming    annoy- 
ani    .     For   instance,  all    inquiries    into  discreditable 
tr.iu   tctions   of  a  remote  date   might,  in  general,  be 

(/■                           ,  Ph.    &   Am.    ]  v.   922,    note  ;  2 

{g)  v                       11  il.  Ev.  500,  roth  ed. 

in   l                     '       222.  {y)  l  M.  ••   M.  to8. 

t.  'I  1.  296.  I 

\t)  8  Id.  817.  («)  See    Ph.  &    Am.  Ev.  923;  2  I  h. 

(u)  4  T.  R.  440.  I 

I        1       7  1 .514.  1315. 5ii'  ed 


200  INSTRUMENTS    OF    EVIDENCE, 

rightly  suppressed  ;  for  the  interests  of  justiec  can 
seldom  require  that  the  errors  of  a  man's  life,  long 
since  repented  of,  and  forgiven  by  the  community, 
should  be  recalled  to  remembrance  at  the  pleasure 
of  any  future  litigant.  So,  questions  respecting 
alleged  improprieties  of  conduct,  which  furnish  no 
real  ground  for  assuming:  that  a  witness  who  could  be 
guilty  of  them  would  not  be  a  man  of  veracity,  might 
very  fairly  be  clucked.  But  the  rule  of  protection 
should  not  be  further  extended  :  for,  if  the  inquiry 
relates  to  transactions  comparatively  recent,  bearing 
directly  upon  the  moral  principles  of  the  witness  and 
his  present  character  for  veracity,  it  is  not  easy  to 
perceive  why  he  should  be  privileged  from  answering, 
notwithstanding  the  answer  may  disgrace  him.  It 
has,  indeed,  been  termed  a  harsh  alternative  to  com- 
pel a  witness  either  to  commit  perjury  or  to  destroy 
his  own  reputation  ;  but,  on  the  other  hand,  it  is 
obviously  most  important,  that  the  jury  should  have 
the  means  of  ascertaining  the  character  of  the  wit- 
ness, and  of  thus  forming  something  like  a  correct 
estimate  of  the  value  of  his  evidence.  Moreover,  it 
seems  absurd  to  place  the  mere  feelings  of  a  profligate 
witness  in  competition  with  the  substantial  interests 
of  the  parties  in  the  cause." 

It  must  be  borne  in  mind,  however,  that  where  a 
witness  is  asked  a  question  which  tends  to  disgrace 
him,  and  answers  the  question,  the  cross-examiner  is  in 
general  bound  by  the  answer  so  given,  because  the 
question  goes  only  to  the  credit  of  the  witness,  which 
is  a  collateral  matter,  and,  to  admit  evidence  to  con- 
tradict him,  would  be  to  raise  a  question  not  relevant 
to  the  issue,  (c) 

(c)  See  R.  v.  Holmes,  I..  Rep.,  i  C.      v.  Clarke,  2  Stark.  247  ;  overruling  R 
C.  334  ;    1 '.  !     Hod         1    R.  &  R.  211  ;      v.  Robins,  2  Moo.  &  R.  512. 
R.  v.  Cockcroft,  11  Cox,  C.  C.  410  ;  R. 


WITNESSES.  201 

But  by  the  17  &  18  Vict.  c.  125,  sects.  25  and  103, 
a  witness  in  a  civil  case  may  be  asked  whether  he  has 
been  convicted  of  any  felony  or  misdemeanor ;  and  if 
he  either  denies  the  fact   or  refuses  to  answer,  the  op- 
posite  party  may  prove  the  conviction.     And;  by  28 
Vict.  c.  18,  s.  6, — which  applies  "  to  all  courts  of  judi- 
cature, as  well  criminal  as  all  others,  and  to  all  persons 
having,  by  law  or  by  consent  of  parties,  authority  to 
hear,  receive, and  examine  evidence,"(V) — a  witness  mas- 
be  asked  whether  he  has  been  convicted  of  any  felony 
or  misdemeanor  ;  and  if  he  either  denies,  or  does   not 
admit  the   fact,  or  refuses  to   answer,  it   shall  be  lawful 
for  the  cross-examining  party  to  prove  such  conviction. 
131.   It   was   formerly  a   disputed    point,  whether 
witnesses  were   compellable   to   answer  questions,  the 
answers  to  which  would    subject    them  to  civil  pro- 
ceedings, (e)     To  set  this  matter  at  rest,  the  46  Geo. 
3,  c.  3J,  was   passed,  which,  after  reciting  the  existing 
doubts  on  the  subject,  proceeded  to  declare  and  enact, 
that  "  a  witness  cannot  by  law  refuse  to  answer  a  ques- 
tion relevant  to  the  matter  in  issue,  the   answering  of 
which  hi-  no  tendency  to  accuse  himself,  or  to  expose 
him  t<.  penalty  or  forfeiture  of  any  nature  whatsoever, 
(/)  by  reason  only,  or  on  the  sole  ground,  that  the 
answering  of  ;uch  question  may  establish  or  tend  to 
tablish  that  he  owes  a  debt,  or  is  otherwise  subject 
to  a  civil  suit."  ' 

(  J )  Se<  t.  1.  ili'-  ''ye  v. 

\e)  2  Phil].   I  '   ed. ;      Butter fi  Id,    -    B.   R    5.   B29,  and   the 

Stark.  Ev.  203/204, 4  ■  ••  "  ferred  to. 

(y  l  the  nam  I  of 

1  '|  he  refu  il  "l  a  party  e>  a  uit,  when  testifying  as  a  wit- 
tie  ,  to  answer  a  material  <iii.-iinii.on  the  ground  thai  it 
might  1  riminate  himself,  ;i  •  on  an  issue  between  a  sellei  and 
pin,  ha  t  of  liquors,  the  refusal  <>t  i!i<'  seller  to  state  whether 
I,,-  i,.,.;  :i  impetcnt  <-\  i<!.-n<  e  again!  1  him.   Andn 

v.  I- 1  ye,  1    i  Ma 


202 


INSTRUMENTS    OF    EVIDENCE. 


CHAPTER   II. 


INCOMPETENCY    OF    WITNESSES. 


PARAGRAPH 

Presumption  in  favor  of  human  testimony 132 

Distinction  between  the  competency  and  the  credibility  of  witnesses    .  132 

Incompetency 132 

Nol  presumed           . 133 

How  ascertained 133 

Grounds  on  which  witnesses  may  be  rejected  unheard     .         .         .  134 

Abuses  of  the  principle  of  incompetency 134 

Rules  of  incompetency  in  the  English  law 137 

Incompetency  from  interest 137 

Incompetency  from  infamy  of  character    .....  141 

Alterations  effected  by  6  &  7  Vict.  c.  83 143 

Expediency  of  rejecting  witnesses  as  incompetent           ....  144 

Grounds  of  incompetency  still  existing  in  our  law 145 

1°.  Want  of  reason  and  understanding    ......  146 

1.  Deficiency  of  intellect 146 

2.  Immaturity  of  intellect — Testimony  of  children           .         .  151 

Old  law 152 

Gradual  changes  in  it         .         .         .         .         .         .         .  153 

Modern  law .154 

Examination  of  infants  of  tender  years  by  the  judge  156 

Dying  declarations  of  in  fa  its        .....  157 

Effect  cf  the  evidence  of  children      .         .         .         .  158 

2°.  Want  of  religion 159 

Three  forms  of  this  incompetency 159 

1.  Want  of  religious  knowledge    ......  160 

2.  Want  of  religious  belief         ......  161 

3.  Refusal  to  comply  with  religious  forms     ....  166 
30.   Interest 167 

I.  Parties  to  the  suit 168 

General  rule  of  the  old  law — not  competent      .         .         .  168 
Exceptions — 


WITNESSES.  203 

Grounds  of  incompetency  still  existing  in  our  law — continued. 
3°.    Interest — continued. 

PARAGRAPH 

At  common  law     .  .......  169 

Prosecutors l6g 

Approvers  and  accomplices     .....  170 

Issues  from  Chancery  ......  1S2 

Orders  of  reference         ......  172 

By  statute 173 

2.  Husbands  ami  wives  of  the  parties  to  the  suit  .         .         .  175 

General  rule  of  the  old  law — not  competent      .         .         .         175 
Exceptions  — 

At  common  law       .  .  .  .  .  .  .  .176 

Charges  of  personal  injury  .....  176 

Abduction 176 

Bigamy 177 

High  treason — doubtful 178 

By  statute  .........  179 

3.  Competency  of  parties  and  their  husbands  or  wives  in  revenue 

prosecutions  .........     1S1 

4.  Competency  of  parties  in  the  court  for  divorce  and  matrimo- 

nial causes  .  ...  .  .  .  .  .  .  1S2 

Certain  persons  who  may  seem  incompetent  witnesses       ....  183 

t.  The  Sovereign     ..........  1S3 

2.  Attorney  in  a  cause         .....         ....  1S4 

3.  Counsel  in  a  cause       .........  1S4 

4.  Jurors     . 1S7 

5.  Judges 1S8 

132.  As  the  reception  of,  and  credit  attached  to 
the  statements  of  witnesses  by  courts  of  justice,  rest 
on  the  natural,  if  not  instinctive, belief  which  is  found 
to  exist  iu  the  human  mind,  (a)  iii  the  genera]  verac- 
ity of  human  testimony,  especially  when  guarded  by 
the  sanction  of  an  oath,  it  follows  that  all  testimony 
delivered  under  that  sanction,  and  perhaps  even  with- 
out it,  oughl  tobe  heard  and  believed,  unless  special 
r<  1  on  appears  for  doubt  or  disbelief.  And  here  arises 
a  leading  distinction,  which  runs  through  the  judicial 
evidence  oi  this  and  most  other  countries;  namely, 
that  in  some  instances  the  special  reason  is  so  obvious, 
that  the  law  deems  it  safer  to  reject  the  testimony  of 

(a)  Introd,  pt.  i,  £  15. 


204  INSTRUMENTS     OF    EVIDENCE. 

the  witness  altogether ;  while  in  others  it  allows  the 
witness  to  make  his  state  ment,  leaving  its  truth  to  be 
estimated  by  the  tribunal,  (b)  This  is  the  distinction 
taken  in  our  books  between  the  competency  and  the 
credibility  of  witnesses.  A  witness  is  said  to  be  in- 
competent to  give  evidence,  when  the  judge  is  bound 
as  matter  of  law  to  reject  his  testimony,  either  gener 
ally  or  on  some  particular  subject ;  in  all  other  cases 
it  is  to  be  received,  and  its  credibility  weighed  by  the 
jury.  The  present  chapter  will  be  confined  to  the  in- 
competency of  witnesses. 

133.  Incompetency  in  a  witness  will  not  be  pre- 
sumed. It  comes  in  the  shape  of  an  exception  or 
objection  to  the  witness ;  and  if  the  facts  on  which  it 
rests  are  disputed  they  must,  like  all  other  collateral 
questions  of  fact,  (V)  be  determined  by  the  judge  ; 
(d)  who,  in  cases  of  doubt,  is  always  disposed  to  re- 
ceive the  witness,  and  let  the  objection  go  to  his 
credibility  rather  than  to  his  Competency.  In  many 
cases  the  ground  of  incompetency  is  apparent  to  the 
senses  of  the  judge  ;  as  where  a  witness  presents 
himself  in  a  state  of  intoxication,  (e)  or  is  an  obvious 
lunatic,  (/)  or  is  of  such  tender  years  that  the  judge 
deems  a  preliminary  inquiry  into  his  religious  knowl- 
edge essential,  (g)  and  the  like.  But  the  ordinary 
mode  of  ascertaining  whether  a  witness  is  competent, 
is  by  examining  him  on  what  is  called  the  voir  dire- 

(/')  "  Sutnma  distinctio  et  observatio  {d)    Bartlett    v.    Smith,    li  M.   & 

est,  testes  aut  prohiberi   penitus,  aut  W.   4S3  ;  R.  v.    Hill,    2    Den.   C.   C. 

reprobari  duntaxat.     Prohibentur,  qui  254. 

plane    non   audiuntur ;    Reprobantur,  (e)  See  the  judgment  in  Mansell  v. 

quihus   auditis   aliquid  objici    potest,  Reg.,  1  Dearsl.  &   B.  405.     "  Ebrietas 

quo   minus   (idem    mereantur."     IIu-  probatur  ex aspectu  illius  qui  asseritui 

berus,    Prael.   Jur.  Civ.  lib.  22,  til.  ?.  ebrius,  &c."     Masc.  de   Prob.   Concl 

n.  1.     See    1    Hale,   P.  C.  035  ;  2    Id.  579,  nn.  5  et  seq. 

276-7.  (/)   Infra. 

if)  lik.  I,  pt.  I,  §82.  [g)  Infra. 


WITNESSES.  205 

i.  e.  a  sort  of  preliminary  examination  by  the  judge, in 
which  the  witness  is  required  to  speak  the  truth  with 
respect  to  the  questions  put  to  him  ;  when,  if  incom- 
petency appears  from  his  answers,  he  is  rejected,  (Ji) 
and  even  if  they  are  satisfactory,  the  judge  may  re- 
ceive evidence  to  contradict  them,  or  establish  other 
facts  showing  the  witness  'to  be  incompetent,  (z) 
It  sometimes  happens  that  the  incompetency  of  a  wit- 
ness is  not  discovered  until  after  he  has  been  sworn, 
and  his  examination  proceeded  with  a  considerable 
way,  or  perhaps  even  brought  to  a  close;  under  which 
circumstances  the  judge  ought,  it  seems,  to  erase  that 
witness's  evidence  from  his  notes,  and  tell  the  jury 
to  pay  no  attention  to  it.  (/'-)  It  has  been  said,  also, 
that  although  in  regular  order  the  examination  on  the 
voir  dire  precedes  the  examination-in-chief,  yet  when 
a  ground  of  incompetency  is  thus  unexpectedly  dis- 
covered, the  judge  may  stop  the  proceedings  and  ex- 
amine on  tin-  voir  dire  with  the  view  of  ascertaining 
the  fact.  (/  ) 

134.  'I'Ik  only  grounds  on  which  the  evidence  of 
a  witness  can  with  any  appearance  of  reason  be  re- 
jected, unheard, are  reducible  t<>  lour.  1.  That  he  has 
not  thai  degree  "I  intellect  which  would  enable  him 
to  give  a  rational  account  <>f  the  matters  in  question. 
2.  That  he  cannol  or  will  not  guarantee  the  truth  of 
his  statemenl  by  the  sanction  <»1  an  oath,  or  what  the 
law  deems  iis  equivalent  3.  That  he  has  been  guilty 
of  some  crime  or  misconduct,  showing  him  to  be  a 
person  on  whose  veracity  reliance  would  mosl   prob- 

(/;)  Yardley  v.  Arnold.,  10  M.  &  W  W.   685;    and    the   authorities   thert 
in                 v.  Laybom,  11  M    &  W.  Whitehead,    L.   I:.,  1   C. 

Morton  v.  Webnter,   ta  «         ;  1  Cox,  <     C 
A.  &  E.  442.  !  Rolfe,  !'■.,  in  fai  "'<    v.  I  ay 

(*)  Bartictl    v.  Smith,  11    M.  &  W.  born,  ut  supra,  lution 

483  ;    (  I  1.    \2l.  "I     III'-'    JU    I   [(    .mill  I  (    .i,t,    2 

(i)  Se     I  I  ayborn,  itM.4      B    t  B.  284. 


206  INSTRUMENTS     OF    EVIDENCE. 

ably  be    misplaced.     4.  That    he   has  a  personal   in- 
terest  in   the  success  or  defeat  of  one  of  the  litigant 
parties.     In  a  word,  his  rejection  should  be  based  on 
the  reasonable  apprehension  arising  from  known  cir- 
cumstance's, that  his  evidence  may  mislead  the  tribunal 
and  so  cause  misdecision.     But  various  classes  of  per- 
sons were  rejected  by  the  civilians,  and  our  old  law- 
yers, on  a  very  different  ground,  viz.,  that  the  giving 
evidence  in  a  court  of  justice  is  a  right  or  privilege 
rather  than  a   duty;  and  consequently  that  incompe- 
tency   to    give   evidence  is  a  fitting   punishment  for 
matters   to    which    the    law    is    desirous  of  attaching 
a  stigma.     And  although  this  is  a  fallacious  and  short- 
sighted view,  even  when   the   offense   stigmatized  is  a 
grave    violation    of    natural    or    municipal    law,   the 
ancient  practice   went   much  further,  and   affixed  the 
brand    of  incompetency  on   erroneous  or   obnoxious 
opinions;  thus  not  only  punishing  the  delinquent,  but 
often  inflicting  ruin  on  the  plaintiff,  defendant,  prose- 
cutor,  or   accused    person,   whose    life,   property,    or 
honor  might  have  been  saved  by  the  evidence  of  the 
rejected  witness,  whose  doctrines  he  might  neverthe- 
1'  5S   have  held  in  due  abhorrence.     There  can   be  no 
doubt   that  this  mischievous  principle  was  borrowed 
from   the  civil   law,  or,  to  speak  •  more  correctly,  from 
those  forms  of  it  which  prevailed  in    the  lower  em- 
pire and  the  middle  ages.  (111)     Most  of  the  provisions 
on  the  immediate  subject  are  to  be  found  in  Cod.  lib. 
1,  tit.  5;  according  to  the  21st  constitution  of  which, 
bearing  dale  a.  d.  532,   heretics  and  Jews   were  not  in 
general  allowed   to    bear  testimony  against   orthodox- 
Christians.     Where  heretics  or  Jews  were  parties,  the 
evidence    of    heretics   and    Jews    was   receivable,    the 
emperor  observing,  "  concedimus   dignos  litigatoribus 

(mi)  See  Bonnier,  :  V  ,  §§  1S5  et  seq. 


WITNESSES.  207 

etiam  testes  introducere ;"  as    it    also   was   in   certain 
other  cases  from   necessity,  "  ne  probationum  facultas 
angustetur :"    but    the    testimony   of    pagans,    Mani- 
chaeans,  and  some  other  sects,  was  rejected   under  all 
circumstances.  (11)     Very  similar  rules  were  acted  on 
by  the  canonists.  (0)     In  former  times  in  this  country, 
when   ecclesiastical    dogmas    were    enforced     by    the 
secular  arm,  and  the    writ    de  haeretico  comburendo 
was  in  force,  the  open  profession  of  infidelity  was  rare  ; 
and  Jews    had   been   expelled  from  the  kingdom  in 
the  reign  of  Edw.  I.,  so  that  very  explicit  information 
on  this  subject   cannot  be    expected  from  our  early  . 
lawyers.     Sir   Edward  Coke,  indeed,  in  his   First  In- 
stitute, lays  down  broadly  that  an  infidel  cannot  be  a 
witness,  (/)   but  cites  no  authority.     In  Calvin's  case 
also   (q)    he    says,    "All   infidels  arc  in  law  perpetui 
inimici,  perpetual  enemies  (for  the  law  presumes  not 
hat    they    will    be  converted,  that  being  remota   po- 
tential remote  possibility),  for  between  them,  as  with 
devils,  whose  subjects  they  be,  and  the  Christian,  there 
is  perpetual  hostility,  and  can  be  no  peace."     For  this 
the   only  authorities  cited,  besides  one   of  those-  pas- 
sages of  Scripture  which  are  commonly  strained  for 
similar  purposes,  are  the   12   Hen.  VIII.  fol.  4a,  pi.  3, 
and    th<     Regist.   Brev.  Orig.  282,  b;   the  former  of 
which  is  a  mere  did  urn  by  Brook,  J.,  thai  a  pagan  can- 
not maintain  an  action;  and  the  hitter  is  an  extract 
from  a  writ    relative  to  the   Knights  Hospitallers,  in 
which  their  institution   is  described   as  founded    "in 
tuitionem  el   defensionem  universalis  el    sacrosanctse 
eccli    ;         mtra   Christi    el    Christianorum    inimicos." 

i'/i   -  tion  at  length,  Angl.  448 ;  Devol    Inst.  Canon,  lib.  ), 

;  tit.  <..  ;'  1  ;. 

(0)  i  i  fur.  Can.  lib.  '  o.  Litt.  6  b. 

tit.    14.  -    [9 ;    A.)  I.    Par,   Jur,    '  Co.  1 7. 


coS  INSTRUMENTS    OF    EVIDENCE. 

In  another  of  his  works  also,  (r)  lie  tells  us  that  the 
passage  in  Bracton,  where  it  is  stated  that  an  alien 
I  torn  cannot  be  a  witness  must  be  intended  of  an 
alien  infidel.  Whether  Coke  did  not  overstate  the 
bigotry  even  of  his  own  time  maybe  questioned,  but 
certain  it  is  that  within  half  a  century  after  his  death 
i'er\  different  notions  had  arisen  ;  and  the  whole  sub- 
ject will  be  best  understood  from  the  following 
powerful  expose  of  the  fallacy  of  his  views  by  L.  C. 
J.  Willes,  in  his  judgment  in  Omichund  v.  Barker,  (s) 
"As  to  the  general  question,  Lord  Coke  has  resolved 
it  in  the  negative,  Co.  Litt.  6  b,  that  an  infidel  cannot 
be  a  witness ;  and  it  is  plain  by  this  word  '  infidel ' 
he  meant  Jews  as  well  as  heathens,  that  is,  all  who  did 
not  believe  the  Christian  religion.  In  2  Inst.  507, 
and  many  other  places,  he  calls  the  Jews  infidel  Jews; 
and  in  the  4  Inst.  155,  and  in  several  other  passages 
of  his  books,  he  makes  use  of  this  expression,  infidel 
pagans,  which  plainly  shows  that  he  comprised  both 
Jews  and  heathens  under  the  word  infidels;  and, 
therefore,  Sergeant  Hawkins  (though  a  very  learned, 
painstaking  man)  is  plainly  mistaken  in  his  History 
of  the  Pleas  of  the  Crown,  vol.  2,  p.  434,  where  he 
understands  Lord  Coke  as  not  excluding  the  Jews 
from  being  witnesses,  but  only  heathens.  But  Lord 
Chief  Justice  Hale  understood  this  in  another  sense, 
in  that  remarkable  passage  of  his  which  I  shall  men- 
tion more  particularly  by  and  by.  I  shall,  therefore, 
take  it  for  granted  that  Lord  Coke  made  use  of  the 
word  'infidels'  here  in  the  general  sense;  and  that 
will,  I  think,  greatly  lessen  the  authority  of  what  he 
says  ;  because  long  before  his  time,  and  of  late,  almost 
ever  since  the  Jews  have  returned  into  England,  they 
have  been  admitted  to  be  sworn  as  witnesses.     But,  J 

(r)  4  Inst.  2;>  (s)  Willes,  541. 


WITNESSES.  209 

think,  the  counsel  for  the  defendant  seemed  to  mis- 
take the  reason  upon  which  Lord  Coke  went.  For 
he  certainly  did  not  go  upon  this  reason,  that  an  in- 
fidel could  not  take  a  Christian  oath,  and  that  the 
form  of  the  oath  cannot  be  altered  but  by  act  of  par- 
liament ;  but  upon  this  reason,  though  I  think  a 
much  worse,  that  an  infidel  was  not  fide  dignus,  nor 
worthy  of  credit;  for  he  puts  them  in  company  and 
upon  the  level  with  stigmatized  and  infamous  persons. 
And  that  this  was  his  meaning  appears  more  plainly 
by  what  he  says  in  Calvin's  case.  (The  Lord  Chief 
Justice  here  cites  the  passage  already  quoted.)  (7) 
But  this  notion,  though  advanced  by  so  great  a  man, 
is,  I  think,  contrary  not  only  to  the  Scripture  but  to 
common  sense  and  common  humanity.  And  I 
think  that  even  the  devils  themselves,  whose  subjects 
he  says  the  heathens  are,  cannot  have  worse  prin- 
ciples; and  besides  the  irreligion  of  it,  it  is  a  most  im- 
politic notion,  and  would  at  once  destroy  all  that  trade 
and  commerce  from  which  this  nation  reaps  such  great 

benefits I  have  dwelt  the  longer  upon  this 

ing  of  his,  because  I  think  it  is  the  only  authority 
that  can  be  met  with  to  support  this  general  assertion, 
that  an  infidel  cannot  be  a  witness.  For  though  it 
may  hi-  founded  upon  some  general  sayings  in  Brac- 
ton,  Fleta,  and  Britton,  and  other  old  books,  those  I 
think  of  very  little  weight,  and  therefore  shall  not  re- 
peal  them;  first,  because  they  are  only  general  dicta; 
and  in  the  nexl  place,  because  thi  e  great  authors 
lived  in  very  bigoted  popish  times,  when  we  carried 
on  very  little  trade  excepl  the  trade  of  religi  in,  and 
consequently  our  notions  were  very  narrow,  and  such 
as  I  hope  will  n  v  r  prevail  again  in  this  country.  As 
to  whal   is  said  by  thai  greal    man,  the   Lord   Chief 

</)  Supra,  [93. 

M 


210  INSTRUMENTS    OF    EVIDENCE. 

Justice  Fortescue,  in  his  book  Dc  Laudibus,  cap.  26, 
that  witnesses  are  to  be  sworn  on  the  holy  evangelists, 
he  is  speaking  only  of  the  oath  of  a  Christian,  and 
plainly  had  not  the  present  question  at  all  in  his  con- 
templation. To  this  assertion  of  my  Lord  Coke's 
(besides  what  I  have  already  said),  I  will  oppose  the 
practice  of  this  kingdom  before  the  Jews  were  expelK  d 
out  of  it  by  the  stat.  18  Edw.  I.  For  it  is  plain  both 
from  Madox's  History  of  the  Exchequer,  pp.  167  and 
174,  and  from  Selden,  vol.  ii.  p.  1469,  («)  that  the 
Jews  here,  in  the  time  of  King  John  and  Henry  III. 
were  both  admitted  to  be  witnesses,  and  likewise  to  be 
upon  juries  in  causes  between  Christians  and  Jews, 
and  that  they  were  sworn  upon  their  own  books,  or 
their  own  roll,  which  is  the  same  thing,  (v)  I  will 
likewise  oppose  the  constant  practice  here,  almost 
ever  since  the  Jews  have  been  permitted  to  come  back 
again  into  England,  viz. :  from  the  19  Car.  II.  (when 
the  cause  was  tried  which  is  reported,  2  Keb.  314), 
down  to  the  present  times,  during  which  I  believe  not 
one  instance  can  be  cited,  in  which  a  Jew  was  refused 
to  be  a  witness  and  to  be  sworn  on  the  Pentateuch. 
To  this  assertion  I  shall  likewise  oppose  the  very  great 
authority  of  Lord  Hale,  vol.  2,  p.  279.  .  .  .  '  It  is 
said  by  my  Lord  Coke  that  an  infidel  is  not  to  be 
admitted  as  a  witness,  the  consequence  whereof  would 
also  be,  that  a  Jew  (who  only  owns  the  Old  Testa- 
ment) could  not  be  a  witness.  But  I  take  it,  that  al- 
though the  regular  oath,  as  it  is  allowed  by  the  laws 
of  England,  is  tactis  sacrosanctis  Dei  evangeliis,  which 
supposeth  a  man  to  be  a  Christian,  yet,  in  cases  of  ne- 
cessity, as  in  foreign  contracts  between  merchant  and 

(«)  Selden's  Works  ljy  Wilkins,  in  randa  in  Scacc.  M.  3  Edw  I.,  and  that 

six  vols.,  a.  D.  J  7  in    the   gth    Edw.    I.,   as    cited    Dyer. 

(v)  See,    in    further  illustration    of  144  a,  pi.  59,  in  marg. 

this,  the  case   of  Cok.  Hagin,  Memo- 


WITXESSES.  2  n 

merchant,  which  are  many  times  transacted  by  Jewish 
brokers,  the  testimony  of  a  Jew,  tacto  libro  legis 
Mosaicae,  is  not  to  be  rejected,  and  is  used,  as  I  have 
been  informed,  among  all  nations.  Yea,  the  oaths  of 
idolatrous  infidels  have  been  admitted  in  the  municipal 
laws  of  many  kingdoms,  especially  si  juraverint  per 
verum  Deum  creatorem  ;  and  special  laws  are  insti- 
tuted in  Spain  touching  the  form  of  the  oaths  of  infi- 
dels. Vide  Covarruviam,  torn,  i,  part  I,  dc  forma 
juramenti.'  And  he  mentions  a  case,  where  it  would 
be  very  hard  if  such  an  oath  should  not  be  taken  by  a 
Turk  or  Jew,  (x)  which  he  holds  binding;  for  possi- 
bly he  might  think  himself  under  no  obligation  if  he 
were  sworn  according  to  the  usual  style  of  the  courts 
of  England.  '  But  then  it  must  be  agreed,  that  the 
credit  of  such  testimony  must  be  left  to  the  jury.' 
.  .  .  The  last  answer  that  I  shall  give  to  this  asser- 
tion of  Lord  Coke's,  as  explained  in  Calvin's  ease, 
are  his  own  words  in  his  4  Inst.  155.  '  Foedus  pads 
or  commercii '  (saith  he),  '  though  not  mutui  auxilii, 
may  be  stricken  between  a  Christian  prince  and  an 
infidel  pagan;  and  as  these  leagues  are  to  be  estab- 
lished ith,  a  question  will  arise,  whether  the  infi- 
del or  pagan  prince  may  swear  in  this  ease  by  false 
,  Is,  since  he  thereby  offendeth  the  true  God  by  giv- 
ing worship  to  false  'a(H^-  This  doubt' (saith  he), 
'was  moved  by  Publicola  to  Saint  Augustine,  who 
tin,  >lv<  t  li  the  ame  :  I  le  thai  taketh  the  credil  ol 
him  that  ireth  by  false  gods,  not  to  any  evil  but 
good,  he  doth  nol  join  him  1  it  to  that  sin  of  swearing 
by  devils,  bul  is  partaker  with  those  lawful  leagues 
wherein  the  othei  keepeth  his  faith  and  oath  ;  bul  il   1 

/.  e.,  if  a  murdei  i  he   could    nol    I 

F.ngland,  in  I'mk      which  would  ling   "i>  his  con- 

nee. 


212  INSTRUMENTS    OF    EVIDENCE. 

Christian  should  anyways  induce  another  to  swear  by 
them,  he  would  grievously  sin.  But,  seeing  that  such 
deeds  are  warranted  by  the  word  of  God,  all  'ticidents 
thereto  are  permitted.'  This  is  (I  think)  as  inconsis- 
tent as  possible  with  his  notion,  that  an  infidel  is  not 
fide  dignus,  and  a  full  answer  to  what  he  said  in  Cal- 
vin's ease  on  this  head;  and  therefore  I  shall  leave 
him  here,  having  (as  I  think)  quite  destroyed  the  au- 
thority of  his  general  rule,  that  none  but  a  Christian 
ought  to  be  admitted  as  a  witness."1 

135.  But  although  these  rational  and  enlightened 
views  had  gained  considerable  ground  during  the 
seventeenth  and  the  early  part  of  the  eighteenth 
centuries,    ( y)    they    cannot    be    said    to    have    been 

(y)  In    the    case  of  Fachina  v.  Sa-  hand    on    the    book    and    kiss  it,  was 

Line,  at  the  Council,  2  Str.  1104,  Dec.  allowed    to  swear,  it  being  laid  open 

1731,    a     Moor    was    sworn     on     the  before    him    anil    he    holding    up    his 

Koran;     and    so    far    back    as    Mich.  right    hand.     Colt  v.    Dutton,  2    Sid. 

;  a  witness  who  objected  to  lay  his  6. 

1  The  question  of  intelligence,  or  of  religious  conviction, 
and  of  the  enormity  and  moral  consequences  of  lying  and 
false  swearing,  it  is  apprehended,  is  the  one  now  governing. 
So,  where  a  court  examines  an  illiterate  child,  to  test  its  com- 
petency as  a  witness,  and  asks  her  "  what  would  become  of 
her  if  she  told  a  lie,"  and  the  child  answers,  "I  shall  go  to  the 
bad  world," — it  was  held,  that  she  was  competent  to  testify 
(Vincent  v.  .State,  3  Heisk.  120).  And  so  it  was  held  in  an 
other  case,  when  the  child's  answer  was,  "the  bad  man  will 
me"  (Logston  v.  State,  Id.  414).  And  so  in  Common- 
wealth v.  Cary,  2  Brews.  (Pa.)  404,  a  child  of  eight  was 
allowed  to  be  instructed  by  the  crier  and  sworn,  who  said  she 
Could  not  read,  and  had  never  heard  of  the  Bible,  but  said  that 
she  must  tell  the  truth,  or  she  would  go  to  "the  big  fires  of 
hell."  1  his  moral  conviction  of  course  must  be  accompanied 
by  mental  ,  (See  McCutcheon  v.  Pique,  4  Heisk.  565  ; 

:li  v.  Winnemore,  2  Brews.  (Pa.)  378).     The  in- 
competen<  1  witness,  on  the  ground  of  disbelief  in  a  God, 

may  be  proved  by  his  declarations  to 'others  on  the  subject. 
Anderson  v.  Maberry,  2  Heisk.  653;  and  sec,  as  to  law  of 
Massa<  h.u  el  mmonwealth  v.  Burke,  82  Mass.  (16   Gray) 

33.      In  Georgia,  Donkle  v.  Kohn,  44  Ga.  266. 


WITNESSES.  213 

established  until  the  great  case  of  Omychund  (or 
Omichund)  v.  Barker,  (z)  in  1744-5,  when  the 
whole  matter  was  fairly  brought  before  a  high  tri- 
bunal, whose  deliberate  decision  forms  the  basis  of 
our  law  on  this  subject.  In  that  case,  a  commission 
to  examine  witnesses  in  the  East  Indies  having  been 
issued  by  the  Court  of  Chancery,  the  commissioners 
certified  that  they  had  examined  several  persons  pro- 
fessing the  Gentoo  religion,  whose  evidence  was 
delivered  on  oath,  taken  in  the  usual  and  most  solemn 
form  in  which  oaths  were  most  usually  administered 
to  witnesses  who  profess  that  religion,  and  in  the 
same  manner  in  which  oaths  were  usually  administered 
to  such  witnesses,  in  the  courts  of  justice  erected  by 
letters  patent  at  Calcutta.  On  account  of  its  im- 
portance, Lord  Chancellor  Ilardwicke  was  assisted  at 
the  hearing  of  the  cause  by  Lee,  C.  J.,  Willes  C.  J.,  and 
Parker,  C.  \\.\  when,  on  its  being  proposed  to  read  as 
evidence  the  deposition  of  one  of  those  persons,  the 
defendants'  counsel  objected  that,  in  order  to  render  a 
p<  rson  1  competent  witness,  he  must  be  sworn  in  the 
usual  way  upon  the  evangelists,  and  that  the  law  of 
England  recognized  no  other  form  of  oath.  The 
ease  having  bi  n  arnedly  argued  on  both  sides,  and 
the  authorities  fully  gone  into,  each  of  the  judges 
deliv<  n  I  an  able  and  elaborate  judgment  ;  in  which 
they  showi  d  cli  arly  thai  oaths  are  nut  peeuliar  to  the 
Christian  religion,  having  been  in  constanl  use,  not 
only  in  the  ancient  world,  but  among  men  in  every 
■■  that  the  ;ubsl  ince  of  an  oath  is  essentially  the 
.Hue  in  all  cases;  namel) .  an  inv< »cation  ol  a  Supe- 
rior Power  to  atte  1  the  vei  icity  of  .1  statement  made 
I))-  a  party,  acknowledging   his  readiness  to  aven 

of  W  illes,  C.  J.,  1  • 

note    of    il    in     1    W  p.  538. 


214  INSTRUMENTS    OF    EVIDENCE. 

falsehood,  and  in  some  cases  invoking  that  vengeance; 
consequently,  that  the  mode  of  swearing  is  not  the 
material  part  of  the  oath,  and  ought  to  be  adjusted  to 
suit  the  conscience  of  the  witness.  They,  however, 
agreed  that  infidels  who  do  not  believe  in  a  God  or  a 
slate  of  rewards  and  punishments  cannot  be  admitted 
as  witnesses;  and  although' from  some  of  the  language 
in  that  case  and  in  other  books,  it  might  be  supposed 
that  a  belief  on  the  part  of  the  witness  in  a  future 
state  of  reward  and  punishment  is  required,  the  better 
opinion  is,  that  belief  in  an  avenger  of"  falsehood 
generally,  is  the  only  thing  needful,  the  time  and  place 
of  punishment  being  mere  matter  of  circumstance.  (#) 
136.  The  principles  laid  down  in  Omychund  v. 
Barker  have  not  only  been  fully  adopted  into  our  law 
and  practice,  (b)  but  are  recognized  by  the  stat  1  &.  2 
Vict.  c.  105  ;  which  enacts,  that  "in  all  cases  in  which 
an  oath  may  lawfully  be  and  shall  have  been  ad- 
ministered to  any  person,  either  as  a  juryman  or  a 
witness,  or  a  deponent  in  any  proceeding,  civil  or 
criminal,  in  any  court  of  law  or  equity  in  the  United 
Kingdom,  or  on  appointment  to  any  office  or  employ- 
ment, or  on  any  occasion  whatever,  such  person  is 
bound  by  the  oath  administered,  provided  the  same 
shall  have  been  administered  in  such  form  and  with 
such  ceremonies  as  such  persons  may  declare  to  be 
binding;  and  every  such  person,  in  case  of  willful  false 
swearing,  may  be  convicted  of  the  crime  of  perjury,  in 

I     id.  §   1252,   4th   ed.  ;  (b)  Maden  v.  Catanach,  7   II.  &  N. 

I      c.  Cr.    Evid.  121,  122,  5th  ed. ;  1  360;  Peake's  Ev.  141.  5th  ed. ;  Ph.  & 

G              Ev.  §   328,7th   ed.     For  the  Am.    Ev.  8  et   seq. ;  1    Greenl.  Ev.  $ 

ncy  in   the  American  authori-  328,  7th  ed.  ;  Judgments  of  the  Barons 

this  subject,  see  Appleton  on  5f  the    Exchequer  in    Miller  v.  Salo- 

-_•,  23,  269,  270;  and   Tay-  mens,  7   Exch.  475  ;  affir.  on   error,  8 

lor  in    loc    cit.  note  (l).      See  further,  Exch.  778. 
on  the  >ul»jecl  of  oath^,  Intrud.  ^g    56 
et  seq. 


WITNESSES.  215 

the  same  manner  as  if  the  oath  had  been  administered 
«n  the  form  and  with  the  ceremonies  most  commonly 
adopted." 

137  Our  common-law  rules  as  to  incompetency 
seem  to  have  been  copied  from  the  civil  law,  which, 
however,  carried  the  principle  of  exclusion  much 
further:  and,  indeed,  our  ancestors  probably  saw,  what 
is  obvious  enough  in  itself,  that  although  an  extended 
prohibition  of  suspected  evidence  may  be  valuable 
under  a  system  where  all  questions  of  law  and  fact  are 
decided  by  a  single  judge,  it  is  misplaced  in  a  country 
where  the  tribunal  has  the  aid  of  a  jury,  acting  either 
as  jud  ict,  as  at  the  present  day,  or  as  witnesses, 

as  in  former  times,  (c)  So  soon,  therefore,  as  the 
modem  I  ..  >.  evidence  began  to  assume  if s  present 
form — i.  c.  in  the  latter  half  of  the  seventeenth  and  be- 
ginning of  the  eighteenth  centuries — the  attention  of 
our  judges  and  lawyers  naturally  became  much  turned 
to  this  qu(  stion  :  when  the  advancing  opinions  of  the 
age,  the  then  fully  recognized  principle  that  the  jury 
arc  not  witnes  es,  but  are  judges  of  the  facts  in  dis- 
pute, id  )  and  the  hopelessness  of  attempting  to  rec- 
oncile the  chaos  of  decisions  as  to  the  incompetency 
ofwitn  s,  which  were  to  be  found  in  the  old  books, 
showed  the  imperative  necessity  of  recasting  the  sys- 
tem. We  have  already  seen  how  the  law  respecting 
oaths  was  settled  by  the  <  ai  e  of  (  >mychund  v.  Barker, 
in  [745  \  (e)  and  with  respect  to  another  very  im- 
portant branch  of  the  subject  the  incompetency  of 
with'  on   the   ground   of  interest     the   court    ol 

Queen's  Bench  in  Lord  Kenvon's  time  laid  down  as  a 
cleai  and  certain  rule  for  the  future,  that,  in  order  to 
r<  nder  a  witness  incompi  tent  on  that  ground,  it   must 

bk.  1,  |>t.  2.  .'  11,  135. 

{d)   M. 


216  INSTRUMENTS    OF    EVIDENCE. 

appeal  either  that  he  was  directly  interested  in  the 
event  of  the  suit,  or  that  he  could  avail  himself  of  the 
verdict  in  the  cause,  so  as  to  give  it  in  evidence  on 
some  future  occasion  in  support  of  his  own  claim.  (/) 
138.  This  rule  having  become  pure  matter  of  legal 
history,  it  would  be  useless  to  refer  to  the  numerous 
cases  illustrative  of  its  extent  and  meaning,  which  are 
reported  in  the  hooks.  It  will  be  sufficient  to  state  a 
few  general  principles.  First,  the  rule  drew  a  distinc- 
tion between  an  interest  in  the  question,  and  an  in- 
terest in  the  event  of  the  suit.  However  strong  a 
witness's  bias  on  the  subject  of  the  suit,  or  his  hopes 
of  obtaining  some  benefit  from  the  result  of  the  trial 
might  be,  these  formed  no  objection  to  his  compe- 
tency, unless  he  had  a  direct  interest  in  its  event. 
Thus,  if  two  actions  were  brought  against  two  persons 
for  the  same  assault,  in  the  action  against  one,  the 
other  was  a  competent  witness,  because  he  was  not  in- 
terested in  the  event.  So,  for  the  same  reason,  where 
an  action  was  brought  against  an  underwriter  on  a 
policy  of  insurance,  another  underwriter  on  the  same 
policy  was  held  a  competent  witness  for  the  defendant. 
(.£")  Again,  the  interest,  to  disqualify,  must  have 
been  a  certain  interest,  and  a  legal  existing  interest. 
If  it  existed  merely  in  the  imagination,  or  belief,  or 
expectation  of  the  witness,  he  was  not  incompetent, 
however  strongly  the  objection  might  be  urged 
against  his  credibility,  (/i)  Hut,  no  matter  how  small 
and  inconsiderable  the  amount  of  the  legal  interest 
might  be,  the  witness  was  incompetent,  (z)  Where, 
however,  a  witness  was  incompetent  on  the  ground  of 
interest,  the  incompetency  might  be  removed  by  a  re- 

(/)  Bent    v.    Baker,   3   T.    R.   27;  (,;')  Beftt  v.  Baker,  3  T.  R.  27. 

Smith  v.  Prager,  7  'I  .  !\  60.    Sec  also  (h)  Ph.  &  Am.  Ev.  81. 

R.  v.  Boston,  4  East,  572  ;  an.]  Doe  >/.  (i)  V.  II.  &  Am.  Ev.  92. 
Lord  Teynham  v.  Tyler.  6  Bingh.  390. 


WITNESSES.  217 

lease  from  liability ;  and  such  releases  were  very  com- 
mon in  practice. 

139.  As  the  law  of  evidence  continued  to  im- 
prove, the  subject  of  interested  witnesses  continued 
to  attract  more  and  more  attention.  The  rule  laid 
down  in  Bent  v.  Baker,  and  the  other  cases  which 
have  been  cited,  was  indeed  well  defined,  and  on  the 
whole  as  good  as  any  that  could  be  devised  on  such  a 
subject  ;  but  the  inconsistency  of  its  application,  and 
its  inefficiency  even  in  its  professed  object  of  obtain- 
ing unsuspected  evidence,  were  obvious.  It  is  impos- 
sible to  calculate,  by  any  rule  laid  down  a  priori,  the 
influence  which  interest  in  a  given  cause,  or  in  the 
event  of  a  given  suit,  will  exercise  on  the  mind  of  a 
given  individual.  On  some  minds,  a  very  slight  in- 
terest would  act  sufficiently  to  induce  perjury ;  on 
others  very  great  interests  would  be  powerless. 
Again,  it  being  equally  impossible  to  detect  the  num- 
berless ways  in  which  parties  may  be,  directly  or  in- 
directly, interested  in  a  particular  event,  the  rule  of 
exclusion  was  restricted  to  the  ease  of  legal  interest 
in  the  <vent  of  the  suit;  the  consequence  of  which 
was,  that  parties  were  often  competenl  to  give  evi- 
dence, who  were  swayed  by  the  si  longest  moral  inter- 
to  per  veri  the  truth.  Thus  the  heir  apparent  to 
an  estate,  however  large,  was  a  competent  witness  for 
his  ancestor  in  po  ession,  on  an  ejectmenl  brought 
by  .1  tranger  claiming  the  property;  while  in  an 
ejectmenl  against  a  tenant  fur  life,  a  remainder-man 
who  has  a  legal  interest  to  the  amount  of  the  smallest 
coin  in  the  i,was  not  competenl  to  give  evidence 

for  the  defend  tnt.  <  /  >    We  hav<  already  alluded  to  the 

is  "I  sep  trat  ■  action  1  ag  tin  I  everal  persons  for  the 
same  assault,  and  ol  an  action  again  1  one  of  several 
(/)  1 11  1 .  t v.  9 1 


218  INSTRUMENTS    OF    EVIDENCE. 

underwriters.  (/•)  And  though  last  nut  least — in  the 
very  teeth  of  the  maxims,  "nemo  in  propria  causa 
testis  esse  debet,"  (/)  and  "  repellitur  a  sacramento 

infamis,"  (m)  there  was  not,  nor  is  there  now,  any 
ride  of  law,  to  prevent  a  man  who  is  indicted,  even 
for  a  capita]  offense,  from  being  convicted  on  the  un- 
supported evidence  of  a  person  who  avows  himself  an 
accomplice  in  his  crime;  (w)  who  is  taken  out  of  jail 
to  bear  testimony  against  his  alleged  companion  ;  who 
gives  that  testimony  under  an  implied  promise  of  par- 
don ;  and  who,  being  liable  on  his  own  confession  to 
be  punished  if  the  government  should  be  dissatisfied 
with  his  conduct  in  this  respect,  may  be  said  to  be 
giving  evidence  with  a  rope  round  his  neck,  and  to  be 
thus  influenced,  by  the  strongest  of  all  earthly  mo- 
tives, to  procure  the  condemnation  of  the  accused.  In 
a  word,  it  became  manifest  at  length,  that  interest  should 
be  an  objection  to  the  credit,  not  to  the  competency 
of  a  witness  ;  but  the  law  and  practice  were  too  firmly 
settled  to  be  altered  without  the  aid  of  the  legislature. 
140.  Without  stopping  to  refer  to  various  statutes, 
passed  from  time  to  time,  by  which  interested  par- 
ties and  witnesses  were  rendered  competent  in  partic- 
ular cases,  we  shall  proceed  to  the  first  general  enact- 
ment on  the  subject,  the  3  &  4  Will.  4,  c.  42,  ss.  26  and 
27,  which  enacted,  that  if  a  witness  should  be  objected 
p)  as  incompetent,  on  the  ground  that  the  verdict  or 
judgment  in  the  action  in  which  it  was  proposed  to 
examine  him,  would  be  admissible  in  evidence  for  or 
against  him,  such  witnesses  should  nevertheless  be  ex- 

(k)  Supn,,i  13S.  note;  R.  v.   Durham,  I<1.  473  ;    R.  v. 

(I)  1  Bl               om.  443  ;  3  Id.  371.  Jones,  2  Campb.  132  ;  28  Ho.  St.  Tr. 

{iii)  Co.  Litt.  15.3  a;  Willes,  667.  487,  488  ;  31  Id.  315  ;   R.  v.  Hastings, 

\>i)   K.  v.  Boyes,  i  B.  &  S.  311,  320;  7  C.  &  P.  152  ;  R.  v.  Wilkes,  Id.  273  ; 

R.   v.   Slubbs,   1    !><.-ar.,l.  555;    R.  v.  R.  v.  Sheeban,  Jebb,  Cr.  C.  54. 
Atlwood,  1  I.             .  L  464,  and  46G, 


WITNESSES.  219 

amined;  but  a  verdict  or  judgment  in  that  actio;),  in 
favor  of  the  party  on  whose  behalf  he  should  have 
been  examined,  should  not  be  admissible  in  evidence 
for  him  or  any  one  claiming  under  him,  nor  should  a 
verdict  or  judgment  against  the  party  on  whose  behalf 
he  should  have  been  examined,  be  admissible  in  evi- 
dence against  him  or  any  one  claiming  under  him  ; 
and  that  the  name  of  every  witness  objected  to  as  in- 
competent on  the  above  ground,  should  be  indorsed 
on  the  record  or  document  on  which  the  trial  should 
be  had,  together  with  the  name  of  the  party  on  whose 
behalf  he  was  examined,  and  entered  on  the  record  of 
the  judgment  ;  and  such  indorsement  or  entry  should 
Ik-  sufficient  evidence  that  such  witness  was  examined, 
in  any  subsequent  proceeding  in  which  the  verdict  or 
judgment  should  be  offered  in  evidence. 

141.  This  statute,  at  best  but  a  palliative  of  the 
evil,  was  virtually  repealed  by  the  6  &  y  Vict.  c.  85. 
But,  before  stating  its  provisions,  we  must  advert  to 
another  ground  of  incompetency  which  has  been  alto- 
gether abolished  by  it,  viz.  infamy  of  character;  re- 
specting which,  as  also  the  ways  in  which  the  disability 
could  be  removed,  much  is  to  be  found  in  the  books. 
'1  he  objections  to  incompetency  on  the  ground  of  in- 
terest apply  here  with  at  leasl  equal  force.  The  prin- 
ciple of  the  exclusion  seems  to  have  varied  in  different 

1  .  In  some  as  where  the  witness  had  been  con- 
victed of  perjury,  forgery,  and  the  like  it  rested,  in 
pari  ;it  least,  on  the  notion  thai  his  testimony  was 
likely  to  prove  mendaciou  .  Bui  the  wide  ranged 
the  rule  cl<  arly  shows  thai  this  lour,  of  incompetem 
like  thai  for  disfavored  religious  opinions,  was  occa- 
sionally imposed  as  a  punishment,  in  ordei  that,  by 
refusing  to  allow  the  witness  to  give  evidence  in  a 
conn  ol  in  lii  e,  he  mighl  be  rendered  a  marked  person 


220  INSTRUMENTS    OF    EVIDENCE. 

in  society.  And  this  seems  supported  by  the  circum- 
stance that  at  common  law  a  pardon,  even  for  perjury, 
restored  the  competency  of  the  witness  and  made  him 
a  new  man.  (^?)  But  whatever  the  reason,  "  repellitur 
a  sacramento  infamis"  (p)  was  the  rule  of  law  ;  and 
in  determining  what  offenses  should  be  deemed  infa- 
mous, an  artificial  distinction  was  taken  which  caused 
the  whole  system  to  work  very  unevenly.  We  allude 
to  the  distinction  between  the  "  infamia  juris  "  and  the 
"  infamia  facti," — between  the  infamy  of  an  offense 
viewed  in  itself,  and  that  arbitrarily  attributed  to  it  by 
law,  ((/) — it  being  a  principle  that  some  offenses,  al- 
though "  minoris  culpce,"  were  "  majoris  infamise."  (r) 
It  would  be  loss  of  time  to  enumerate  with  nicety  the 
offenses  which  were  deemed  infamous  by  law  ;  it  will 
be  sufficient  to  say  that  treason  and  felony  stood  at 
their  head,  though  an  exception  was  created  by  31 
Geo.  3,  c.  35,  in  favor  of  petty  larceny,  before  the  dis- 
tinction between  it  and  grand  larceny  was  abolished. 
(s)  A  eonviction  for  misdemeanor  did  not,  in  general, 
render  a  witness  incompetent;  but  to  this  there  was 
the  general  exception,  of  offenses  coming  under  the 
description  of  the  crimen  falsi — such  as  forgery,  per- 
jury, subornation  of  perjury,  various  forms  of  conspir- 
acy, and  the  like.  (7)  Still  every  crime  involving 
falsehood  or  fraud  had  not  this  effect.1 

(o)  We   say,  at  common   law  ;  for  it  statute  made  part  of  the  punishment, 

v.    .  otherwise  on  a  conviction  of  per-  See  this  subject  fully  investigated  in  2 

jury   under    the    5    Eliz.    c.  9,   made  Hargrave's  Jurid.  Argum.  221. 

etual  by  21  Jac.  I,  c.  28,  s.  8.     The  (p)  <'<>.  Lilt.  158  a;  Willes.  667. 

difference    is,  that    in  the   former  ca  1/1   Ph.  &  Am.  Ev.  14. 

the   disqualification    only   followed  as  (r)  Co.  Liu.  0  1>. 

a   consequence    from    the    jud  '   1   Ph.  &  Am.  Ev.  17. 

wherea-   in   the   latter   it   wa^   by   the  (t)  Id. 

:  -  infamy,  Schuylkill  v.  Copeley,  67  Pa.  St.  386; 
Brown  v.  State.  18  (  )hio  St.  496  ;  Commonwealth  v.  Murphy,  3 
Pa.  Law  Jour.  R.  290.     See,  as  to  rule  in  New  York,  Delamater 


WITNESSES.  221 

142.  In  all  cases  the  incompetency  was  created, 
not  by  the  conviction,  for  that  might  have  been 
quashed  on  motion  in  arrest  of  judgment,  ( u)  but  by 
the  judgment  of  the  court  pronounced  against  the 
offender,  and  which  must  have  been  proved  in  the 
usual  way  (x) — the  maxim  being  "  ex  delicto  11011  ex 
supplicio  emergit  infamia."  (y)  Incompetency  on 
the  ground  of  infamy  was  removable  of  course  by 
reversal  of  the  judgment,  and,  in  general,  by  pardon, 
(z)  or  by  having  undergone  the  punishment  awarded 
for  the  offense,  (a) 

143.  Such  was  the  state  of  the  law  on  this  sub- 
ject at  the  time  of  the  passing  of  the  6  cS:  7  Vict.  c. 
85,  whereby,  after  reciting  that  the  inquiry  after  truth 
in  courts  of  justice,  was  often  obstructed  by  incapaci- 
ties created  by  the  then  existing  law,  and  it  was  desir- 
able that  full  information  as  to  the  facts  in  issue,  both 
in  criminal  and  in  civil  cases,  should  be  laid  before 
the  persons  appointed  to  decide  upon  them,  and  that 
such  persons  should  exercise  their  judgment  on  the 
credit  of  the  witnesses  adduced,  and  on  the  truth  of 
tin  ir  testimony — it  was  enai  ted  as  follow-,  "  No  per- 
son offered  as  a  witness,  shall  hereafter  be  excluded 
by  rea  on  oi  incapacity  from  crime  or  interesl  from 
riving  evidi  nee,  either  in  person  or  by  deposition,  ac- 
cording to  the  practice  of  the  court;  on  the  trial  of 
an)  ;    ue  joined,  or  of  any  mailer  or  question  or  on 

(//)  Id.  .    '  l'- 

I    .  &  Am.  I  v    i').  -jo.  i"  1  ■  ''       inder  v.  Mac- 

(;•)    fd.   [8.  1  in'!-',  Wi  1         ' 

\.  People,  5  Lan  -  (1  V  Y>  ;;•:   People  v.  Park,  41    V  V.  .0. 

'I  he  :i.  t  .,1  .  .mi-  now  n  :i    "  ill'-  <  i\  it   rij  til     lull,"  1    para 

I, l'. Illi!     aS     I"     t  I""    '  '"Hi  ■      Of    wil  lie      <•    ,   .111(1     mUSl     pi  '  \  ail 

when  il  in    come  in  contact  with  state   law.    The  fi 

Lion  "i  thai  a<  1   gh  e  |ual    1  ighi  1  \\  ith  whitei  ti 

give  evidence,  and  th<  therefore   competent    witm     es 

Kelly  v.  Stair,  25    Ark. 


222  INSTRUMENTS    OF    EVIDENCE. 

any  inquiry  arising  in  any  suit,  action,  or  proceeding 
civil  and  criminal,  in  any  court,  or  before  any  judge, 
jury,  sheriff,  coroner,  magistrate,  officer,  or  person, 
having,  by  law  or  by  consent  of  parties,  authority  to 
hear,  receive,  and  examine  evidence;  but  every  person 
so  offered  may  and  shall  be  admitted  to  <nvc  evidence 
on  oath,  or  solemn  affirmation  in  those  cases  wherein 
affirmation  is  by  law  receivable,  notwithstanding  that 
such  person  may  or  shall  have  an  interest  in  the  mat- 
ter in  question,  or  in  the  event  of  the  trial  of  any 
issue,  matter,  question,  or  injury,  (6)  or  of  the  suit, 
action,  or  proceeding  in  which  he  is  offered  as  a  wit- 
ness, and  notwithstanding  that  such  person  offered  as 
a  witness  may  have  been  previously  convicted  of  any 
crime  or  offense :  Provided  that  this  act  shall  not 
render  competent  any  party  to  any  suit,  action,  or 
proceeding  individually  named  in  the  record,  or  any 
lessor  of  the  plaintiff,  or  tenant  of  premises  sought  to 
he  recovered  in  ejectment,  or  the  landlord  or  other 
rson  in  whose  right  any  defendant  in  replevin  may 
make  cognizance,  or  any  person  in  whose  immediate 
and  individual  behalf  any  action  may  be  brought  or 
defended,  either  wholly  or  in  part,  or  the  husband  or 
wife  of  such  persons  respectively."  Then  followed 
two  other  provisoes,  namely,  that  the  Wills  Act,  7 
Will.  4  &  1  Vict.  c.  26,  should  not  be  affected  by  the 
statute;  and  that  in  courts  of  equity,  a  defendant 
might  be  examined  as  a  witness  on  the  behalf  of  the 
plaintiff  or  of  any  co-defendant,  saving  just  excep- 
tions; and  any  interest  which  such  defendant  so  to  be 
examined  might  have  in  the  matters,  or  in  any  of  the 
matters  in  question  in  the  cause,  should  not  be  deemed 
a  just  exception  to  the  testimony  of  such  defendant, 
but  should  only  be  considered  as  affecting  or  tending 

U>)  Sic. 


WITNESSES.  223 

o  affect  the  credit  of  such  defendant  as  a  witness, 
The  first  of  the  above  three  provisoes  is  repealed,  so 
far  as  relates  to  parties  to  civil  proceedings,  by  the  i_j 
&  15  Vict.  c.  99,  s.  1  :  and  with  respect  to  their  hus- 
bands and  wives  by  16  and  17  Vict.  c.  83,  s.  4.  (7) 

144.  Not  only  is  the  inclination  of  our  modern 
judges  and  lawgivers  in  favor  of  receiving  the  evi- 
dence of  witnesses,  leaving  its  value  to  be  estimated 
by  the  jury,  but  the  propriety  of  expunging  from  our 
jurisprudence  the  title  "Incompetency  of  witnesses" 
has  been  strongly  and  ably  advocated,  as  well  as  can- 
didly and  temperately  defended.  (d)  For  reasons 
stated  in  the  Introduction  to  this  work,  (e)  it  seems 
that,  for  general  purposes  at  least,  the  principle  of  in- 
competency ought  to  be  confined  to  pre-appointed,  as 
contradistinguished  from  casual  evidence;  and  the 
legislature  lias  of  late  years  inclined  to  this  view. 
While,  on  the  one  hand,  it  has  almost  abolished  the 
rules  rejecting  casual  witnesses  as  incompetent,  it  has, 
on  the  other,  interposed  with  regulations  requiring 
certain  important  pieces  of  pre-appointed  evidence  to 
be  iti  I  !  in  some  particular  way.  Thus,  the  6&  7 
Vict.  e.  85,  which,  as  we  have  seen,  removes  all 
objections  to  competency  on  the  ground  of  interest 
in    mo  !  and  of  infamy  iii   all, — contains  an   ex- 

press proviso,  that  nothing  in  it  shall  repeal  the  Wills 
Act,  7  Wih.  .j  &  1  Vict.  e.  26,  by  which  (as  explained 
by  15  &  16  Vict.  C.  24),  all  wills  must  be  in  waiting 
and  atl  tr    two  or  more  vvitm         .  and  which,  by 

section  1  5,  enacts  thai  if  a  will  contains  any  beneficial 
devi  :e,  !  icy,  gift,  &c,  to  an  attesting  witness,  it  shall 
be  void,  in  order  thai  he  may  be  competent  to  prove 
the  e  'ii  1  1  the  will.     And  the  32  &  33  Vic;  c. 

(c)  S  fia.  I 'I. 

(J)   Ii 


224  INSTRUMENTS    OF    EVIDENCE. 

62,  s.  24,  requires  that  all  cognovits,  and  warrants  of 
attorney  to  confess  judgment,  shall  be  subscribed  by 
an  attorney,  acting  on  behalf  of  the  party  by  whom 
they  aie  executed,  and  expressly  named  by  him., 

145.  We  now  proceed  to  consider  more  in  detail,, 
the  three  grounds  of  incompetency  which  still  exist 
in  our  law,  namely  :   1.   Incompetency  from   want  of 
reason    and    understanding;    2.   Incompetency    from 
want  of  religion  ;  and  3.  Incompetency  from   interest. 

146.  1.  Incompetency  from  want  of  reason  and 
understanding.  The  causes  of  this  incompetency  are 
twofold — Deficiency  of  intellect.,  and  Immaturity  of 
intellect.  The  objection  on  the  first  of  these  grounds, 
rarely  presents  itself  to  the  competency  of  a  witness; 
and  if  the  defect  appears  in  the  course  of  his  exami- 
nation, it  is  usually  made  matter  of  comment  to  the 
jury. 

147.  Our  books  lay  down  generally  that  persons 
of  "  non-sane  memory,"  and  who  have  not  the  use  of 
reason,  are  excluded  from  giving  evidence,  (/") '  but 
they  arc  not  quite  agreed  as  to  the  reason  of  this — 
some  basing  it  on  the  ground  that  such  persons  are 
insensible  to  the  obligation  of  an  oath  ;  (g)  while 
others,  with  more  justice,  say  it  is  because  all  persons 
who  are  examined  as  witnesses  must  be  fully  pos- 
sessed of  their  understanding, — that  is,  of  such  an 
understanding  as  enables  them  to  retain  in  memory 
the  events  of  which  they  have  been  witnesses,  and 
gives  them  a  knowledge  of  right  and  wrong.  (//.) 
Probably   both   reasons  have  had  their  influence.  (?) 

(/)  Com.    Dig.  Tenmoigne,  A.   i;  [g)  i   Greenl.   Ev.  §  365,  7th  < d.  ■ 

Co.    Litt.    6    b;     Ph.    &    Am.  Ev.  4;      Tayl.  Ev.  §  1247,  4th  ed. 
l'eake,  Ev.  122,  5th  e<l.  t/i)  Peake's  Ev.  122,  5th  ed. 

(/)  Ph.  &  Am.  Ev.  4. 

1  McCutcheon  v.  Pique,  4  Ilcisk.  (Tenn.)  565. 


WITNESSES.  225 

According  to  the  Roman  law,  "  Furiosus  abscntis  loco 
est."  (/) 

148.  But  who  are  thus  excluded  ?  What  is  the 
extent  of  the  rule  ?  A  man  of  "  non-sane  memory  "  is 
defined  by  Littleton,  "  qui  non  est  compos  mentis." 
( {,-)  This  is  corroborated  by  Sir  E.  Coke  in  his  Com- 
mentary, (/)  who  adds,  "  Many  times,  as  here  it  ap- 
peareth,  the  Latin  word  cxplaineth  the  true  sense,  and 
(Littleton)  calleth  him  not  amens,  demens,  furiosus, 
lunaticus,  fatuus,  stultus,  or  the  like,  for  non  compos 
mentis  is  most  sure  and  legal."  lie  then  goes  on, 
"  Non  compos  mentis  is  of  four  sorts.  1.  An  idiot, 
which  from  his  nativity,  by  a  perpetual  infirmity,  is 
non  compos  mentis.  2.  He  that  by  sickness,  grief,  or 
other  accident,  wholly  loses  his  memory  and  under- 
standing. 3.  A  lunatic  that  hath  sometime  his  under- 
standing and  sometime  not, '  aliquando  gaudet  lucidis 
intervallis,'  and  therefore  he  is  called  'non  compos 
mentis,' so  long  as  he  hath  not  understanding.  4.  Last- 
ly, he'  that  l>\  his  own  vieious  act  for  a  time  depriveth 
himself  of  Ins  memory  and  understanding,  as  he  that 
is  drunken."  A  similar  classifieation  is  adopted  in 
modern  works  on  evidence,  (m)  These  four  sorts  of 
pei  "ii  an  incompetent  witnesses,  until  the  cause  of 
incompet<  ncy  is  removed.  Thus,  although  a  person 
deaf  and  dumb  from  birth  is  presumed  by  law  to  be 
;im  idiot,  (#)  \  el  if  he  can  be  communicated  with  either 
by  signs  and  tokens,  (0)  or  by  writing,  (/>)  and  it  ap- 
pears thai   he  is  possessed  of  intelligence,  and  under- 

17,  1.  (2  1,  .'  1.         (»)  r  Hale,  P   C.   14. 
126  a.  r  Phill.  Ev.  7,  10th  eJ. ;  R.  v. 

I  1  r.u  i.in.  1   Leach,  C.  L.  408 ;  R.  v. 

I  |~2. 

(wt  I'll.  &    Am.   Ev.  4;  i   Greenl.         (/■)  1  Ph.  Ev. 7, 10th  ed. ;  Morrison 
Ev.  I.  v.  Lennard,  3  C.  &  P.  127. 

15 


226  INSTRUMENTS    OF    EVIDENCE. 

stands  the  difference  between  truth  and  falsehood,  (</) 
he  may  be  examined  as  a  witness.  In  one  case,  where 
it  appeared  that  such  a  person  could  write,  Best,  G 
•J.  doubted  whether  he  ought  not  to  be  compelled  to 
give  his  evidence  in  that  way,  and  not  by  signs,  (r)  But 
it  would  be  difficult  to  maintain  this  as  a  proposition 
of  law,  even  supposing  it  to  holiJ  good  as  a  principle 
of  convenience.  Neither  of  these  modes  of  giving 
evidence  is  derivative  from,  or  secondary  to  the  other; 
besides  which,  a  deaf  and  dumb  witness  might  be  very 
expert  in  making  and  understanding  signs,  and  yet  ex- 
press his  thoughts  very  indifferently  in  writing.  In  a 
much  more  recent  case,  before  Lord  Campbell,  which 
was  an  action  for  seduction,  the  seduced  party  was 
deaf  and  dumb,  but  could  write  very  well,  and  two  let- 
ters written  by  her  to  the  defendant  were  put  in  evi- 
dence. Her  examination  in  court,  however,  was  chiefly 
carried  on  by  signs,  and,  occasionally,  when  these  were 
not  understood,  by  writing.  (Y)  So  a  lunatic  while 
in  a  lucid  interval  is  a  competent  witness:  (7)  but 
whether  the  evidence  of  a  monomaniac,  i.  e.  a  per- 
son insane  on  only  one  subject,  can  be  received  on 
matters  not  connected  with  his  delusion,  remained  un- 
settled until  recently.  And  some  text  writers  thought, 
it  the  safest  rule  to  exclude  the  testimony  of  such 
persons,  it  being  impossible  to  calculate  with  aceuracy 


(q)  Formerly  the  witness  could   not  fully    and    corruptly    give     false    evi- 

be   examined    unless   he   appeared    to  dence."     See  32  &  33  Vict.  c.  68,  s.  4. 

understand    the    nature    of    nn    oath.  The   test   of    his   competency   to  give 

•.-,   however,  a  witness   may  be  ex-  evidence,  therefore,  would   seem  to  be 

amined,  even  although  he  be  consid-  that  stated  in  the  text. 

ered  "incompetent   to  take  an  oath,"  O)  Morrison  v.  Lenn.inl,  3  C.  &  P. 

from  the  fact  that,  in    the  opinion  of  127. 

the    judge,  "the    taking    of    an    oath  (s)  Bartholomew    v.   George,    Kent 

would  have   no  binding  effect  on   his  Sp.  Ass.  1851,  MS. 

conscience."     But  he  is  still   liable  to  it)  Com.    Dig.    Testmoigne,  A.   i; 

be   indicted   for   perjury,   if  he  "will-  Ph.  &  Am.  Ev.  5. 


WITNESSES.  227 

the  extent  and  influence  of  such  a  state  of  mind,  («) 
This  would  be  hard  measure.  A  monomaniac  may 
perfectly  understand  the  nature-  and  obligation  of  an 
oath  ;  his  general  intellect  may  equal  or  surpass  that 
of  his  interrogators ;  and  indeed  he  seems  much  in 
the  condition  of  a  lunatic  who  is  in  a  perpetual  lucid 
state  on  all  subjects  save  one.  A  medical  man,  emi- 
nent in  the  treatment  cf  the  insane,  deposed  in  our 
presence,  in  a  eouit  of  justice,  that  while  he  was  phy- 
sician to  a  large  lunatic  establishment,  some  alterations 
were  required  in  the  building,  and  that  the  best  plans 
for  the  purpose,  and  those  which  were  ultimately 
adopted,  were  sent  in  by  one  of  the  insane  patients.  In 
Ray's  Medical  Jurisprudence  of  Insanity,  (v)  a  case  is 
mentioned,  which  was  tried  before  the  Supreme  Court 
for  the  county  of  Lincoln  in  Maine,  America,  in  May, 
1833,  in  which  a  witness  was  produced  who  was  perfectly 
sane  and  satisfactory  in  his  evidence  on  all  points 
except  that  he  believed  himself  to  be  an  inspired 
apostle.  And  on  an  application  to  the  Court  of  Ex- 
chequer for  a  habeas  corpus  ad  testificandum,  to  bring 
up  the  body  of  a  person  confined  as  a  lunatic,  Parke, 
B.,  said,  "  If  you  make  an  affidavit  that  he  is  not  a 
dangerous  lunatic,  and  thai  he  is  in  a  lit  state  to  be 
brought    up,  the   habeas  corpus  should  be  granted." 

to 

149.  This  question  seems  now  set  at  rest  by  tht 
case  of  R.  v.  Hill.  (  v)  decided  by  the  court  of  Crim- 
inal Appeal.  The  accu  ed,  who  was  attendant  of  a 
ward  in  a  lunatic  asylum,  was  indicted  lor  the  man- 
slaughter of  one  of  the  patients  under  his  care.  At 
the  trial   before  Coleridge   and  Cress  we  11,  JJ.,  at  the 

,    Crim.    I'.v.     123,    4th  Fennell  v.  Tait,  i   C.  M.  &   R. 

ed.  584. 

(v)  <  asc  of  Jacob  Schwartz.  ( y)  2  Den.  &  P.  C.  C  254. 


MS  INSTRUMENTS    OF    EVIDENCE. 

Central  Criminal  Court,  it  being  opened  by  the  pros- 
ecution that  a  witness  of  the  name  of  Donelly  would 
be  called,  who  was  a  patient  in  the  same  ward  with 
the  deceased,  evidence  was  gone  into  on  both  sides 
in  ord(  r  to  found  and  meet  the  objection  to  his  com- 
petency. A  witness  stated  that  Donelly  labored 
under  the  delusion  that  he  had  a  number  of  spirits 
about  him  continually  talking  to  him  ;  but  that  that 
was  his  only  delusion  :  and  two  medical  witnesses 
deposed  that  he  was  rational  on  all  points  not  con- 
nected with  it  ;  while  one  added,  that  he  was  quite 
capable  of  giving  an  account  of  any  transaction  that 
happened  before  his  eyes.  Donelly  was  then  called, 
and  before  being  sworn  was  examined  by  the  pris- 
oner's counsel.  He  said,  "  I  am  fully  aware  that  I 
have  a  spirit,  and  twenty  thousand  of  them  ;  they  are 
not  all  mine;  I  must  inquire — I  can  where  I  am';  I 
know  which  are  mine.  Those  ascend  from  my  stom- 
ach to  my  head,  and  also  those  in  my  ears  ;  I  do  not 
know  how  many  they  are.  The  flesh  creates  spirits 
by  the  palpitation  of  the  nerves  and  the  'rheumatics;' 
all  are  now  in  my  body  and  round  my  head  ;  they 
speak  to  me  incessantly — particularly  at  night.  That 
spirits  are  immortal,  I  am  taught  by  my  religion  from 
my  childhood,  no  matter  how  faith  goes ;  all  live  after 
my  death,  those  that  belong  to  me  and  those  which 
do  not ;  Satan  lives  after  my  death,  so  docs  the  living 
God."  After  more  of  this  kind,  he  added,  "They 
speak  to  me  constantly  ;  they  are  now  speaking  to 
me  ;  they  are  not  separate  from  me  ;  they  are  round 
me  to  me  now;  but  I  can't  be  a  spirit,  for  I 

am  flesh  and  blood  ;  they  can  go  in  and  go  out 
through  walls  and  places  which  I  cannot.  I  go  to  the 
grav<  ,  hey  live  hereafter — unless,  indeed,  I  have  a 
gift  different  from   my  father  and  mother  that  I  do 


WITNESSES.  229 

not  know.  After  my  death  my  spirit  will  ascend  to 
Heaven,  or  remain  in  purgatory.  I  can  prove  pur 
gatoiy.  I  am  a  Roman  Catholic ;  I  attended  Moor- 
fields,  Chelsea  chapel,  and  many  other  chapels  round 
London.  I  believe  purgatory  ;  I  was  taught  that  in 
my  childhood  and  infancy.  I  know  what  it  is  to  take 
an  oath ;  my  catechism  taught  me  from  my  infancy 
when  it  is  lawful  to  swear  ;  it  is  when  God's  honor, 
our  own  or  our  neighbor's  good  require  it.  When 
man  swears,  he  does  it  in  justifying  his  neighbor  on  a 
Prayer-book  or  obligation.  My  ability  evades  while  I 
am  speaking,  for  the  spirit  ascends  to  my  head. 
When  I  swear,  I  appeal  to  the  Almighty;  it  is  perjury 
the  breaking  a  lawful  oath  or  taking  an  unlawful  one  ; 
he  that  does  it  will  go  to  hell  for  all  eternity."  He 
was  then  sworn,  and,  says  the  report,  gave  a  perfectly 
connected  and  rational  account  of  a  transaction  which 
he  reported    himself  to  have  witnessed.     He  was  in 

me  doubt  as  to  the  day  of  the  week  on  which  it 
look  place,  and  on  cross-examination  said,  "  These 
creatures  insist  upon  it  it  was  Tuesday  night,  and  I 
think  it  was  Monday;"  whereupon  he  was  asked,  "  Is 
wh;it  jrou  have  told  us  whal  the  spirits  told  you,  or 
what  you  recoiled  without  the  spirits?"  and  he  said, 
M  No ;  the  spirits  assist  me  in  speaking  of  tin-  date; 
I  thought  it  was  Monday,  and  they  told  me  it  was 
Christmas  Eve  Tuesday;  but  I  was  an  eye-witne 
an  0  ulai  witness,  &c."  The  court  received  his  evi- 
dence, r<  erving  the  <ju<sti<>n  of  his  competency  foi 
the  Court  of  Criminal  Appeal.  The  accused  having 
bi  en    convicted,  the   <  .1  le   was   argued    before    Lord 

impbell,   C.   .'.,   Coleridge   and    Talfourd,   )).,  and 
AM.  1  '.ii  and   Piatt,  BB. ;  when  the  courisi  1   for  th< 
prisoner   contended,  thai    Donelly    was  non    compos 
mentis,  but    was  a   lunatic  within  the  legal   definition 


230  INSTRUMENTS    OF    EVIDENCE. 

of  that  term;  and  that  as  soon  as  any  unsoundness 
of  mind  is  manifested  in  a  witness,  he-  ought  to 
be  rejected  as  incompetent,  citing,  inter  al.,  Com. 
Dig.  Testmoigne,  A  i.  The  court,  however,  without 
hearing  counsel  on  the  other  side,  unanimously  up- 
held the  conviction.  Lord  Campbell,  in  delivering 
his  judgment,  said,  "The  question  is  important,  and 
has  not  vet  been  solemnly  decided  after  argument. 
But  1  have  no  doubt  that  the  rule  was  properly  laid 
down  by  Parke,  B.,  in  the  case  that  was  tried  before 
him,  and  that  it  is  for  the  judge  to  say,  whether  the 
insane  person  has  the  sense  of  religion  in  his  mind, 
and  whether  he  understands  the  nature  and  sanction 
of  an  oath  ;  and  then  the  jury  are  to  decide  on  the 
credibility  and  weight  of  his  evidence.  As  to  the 
authorities  that  have  been  cited,  the  question  is,  in 
what  sense,  the  term  '  non  compos '  was  there  used. 
A  man  may,  in  one  sense,  be  non  compos,  and  yet  be 
aware  of  the  nature  and  sanction  of  an  oath.  In  the 
particular  case  before  the  court,  I  think  that  the  judge 
was  right  in  admitting  the  witness ;  I  should  have  cer^ 
tainly  done  so  myself.  ...  It  has  been  argued 
that  any  particular  delusion,,  commonly  called  mono- 
mania, makes  a  man  inadmissible.  This  would  be 
extremely  inconvenient  in  many  cases  in  the  proof, 
either  of  guilt  or  innocence  ;  it  might  also  cause 
serious  difficulties  in  the  management  of  lunatic 
asylums.  I  am,  therefore,  of  opinion  that  the  judge 
must,  in  all  such  cases,  determine  the  competency, 
and  the  jury  the  credibility.  Before  he  is  sworn,  the 
insane  person  may  be  cross-examined,  and  witnesses 
called  to  prove  circumstances  which  might  show  him. 
to  be  inadmissible;  but,  in  the  absence  of  such  proof, 
he  is  prima  facie  admissible,  and  the  jury  must  attach 
what  weight   they  think   fit  to   his  testimony."     Tal- 


WITNESSES.  231 

fourd.  J.,  observing,  "It  would  be  disasterous  if  mere 
delusions  were  held  to  exclude  a  witness.  Some  of 
the  greatest  and  wisest  of  mankind  have  had  particu- 
lar delusions  ;" — Lord  Campbell  added,  "  The  rule 
which  has  been  contended  for  would  have  excluded 
the  testimony  of  Socrates,  for  he  had  one  spirit 
always  prompting  him,"  (y) 

150.  But  while  our  books  point  out  the  various 
causes  of  mental  alienation  which  disqualify  from  giv- 
ing evidence,  they  say  little  or  nothing  as  to  the  in- 
tensity of  it  required  for  this  purpose.  In  truth  there 
are  two,  if  not  more,  distinct  standards  of  mental 
alienation  known  to  the  law.  First,  that  which  is  suf- 
ficient to  exculpate  from  a  criminal  charge  :  and  here 
it  is  settled  that  ordinary  lesion  of  intellect  is  not  suf- 
ficient— there  must  be  such  an  absence  of  intellect 
that  the  accused,  when  he  did  the  act,  was  unconscious 
that  he  was  committing  a  crime  prohibited  by  law. 
(z)  Second.  The  degree  of  insanity  which  will  sup- 
port a  commission  of  lunacy.  In  the  time  of  Lord 
Eldon  the  Court  of  Chancery  assumed,  perhaps 
usurped7~the  jurisdiction  of  issuing  commissions  of 
lunacy  against  "persons  of  unsound  mind,"  i.  £.,  per- 
sons in  a  state  contradistinguished  from  idiocy  and 
lunacy,  a  state  of  mental  imbecility  and  incapacity 
to  manage  their  affairs,  (a)  Third.  The  degree  of 
unsoundness  of  mind  which  will  avoid  contracts. 
de<  ds,  wills,  and  the  like,  seems  to  hold  an  intermedi- 
ate place    between    tins.-.   (Jj)     Calm    reflection   will 

(  v  1  See  Waring  v.  Waring,  6  Moo.         (>n  Shelford  on  Lunacy,  pp.  5,  104 

P.C.  C.  ;oi.  2nd  ed. 

1    \  ,  wei  >.f    ill-    judgi      '  1   die  \    to  Hi-  di 

U  lU()         (  Scott,  X     R.  ;-i-  ;  "l  mind  which  will   avoid   a  will,  the 

1    1    ir.   &    K.   130  ;    R.  v.  II  on,  law,  as  now    el    ed,  is,  thai   th 

id.   1  j  ,  .  l;.   v.  Vauglian,   1    Cox,  Cr,  ence  on  the  mind  oi  the  ti  >>f  a 

Ca.  80.  ^'•■i  which  is  compatible  with  the 


232  INSTRUMENTS    OF    EVIDENCE. 

convince,  that  if  mental  alienation  is  to  be  retained  in 
our  law  as  a  ground  of  incompetency,  it  should  be  re* 
stricted  to  eases  where  it  is  found  impossible  to  com- 
municate with  the  witness,  so  as  to  make  him  under- 
stand that  he  is  in  a  court  of  justice   and  expected  to 
speak    the    truth.     Any  eccentricities    or    aberrations 
which  fall  short  of  this,  are  surely  only  matter  of  com- 
ment to  the  jury,  as  to  the  reliance  to  be  placed  on  his 
testimony.     And  here  it  is  important  to  observe  once 
for  all,  that  when  reading  what  our  old    lawyers  have 
written  on    the   subject  of  insanity,  we   should   never 
forget  how  little  the  subject  was   understood  in  their 
day,  and  the  shocking   mistakes  in   the  treatment  of 
the  insane  which  then   prevailed.     As  some   one  has 
observed,  "  their  notions  of  insanity  were  founded  on 
observation  of  those  wretched   inmates  of  the  mad- 
house, whom  stripes  and  chains,  cold  and  filth,  had  de- 
graded to  the  stupidity  of  an   idiot,  or   exasperated  to 
the  fury  of  a  demon."     Now,  the  researches  of  modern 
physiologists  have  shown,  that  madness   is  not  an^  in- 
iliction  sent  direct  from  Heaven,  but  a  bodily  disease, 
which  may  often  be  completely  cured  ;  and  that  there 
are  many  inferior  forms  of  diseased  or  disordered  mind 
and  imagination,  which   influence  the  conduct  of  per- 
sons  who   are,  in  other  respects,  perfectly  capable  of 
taking  care  of  themselves  and  transacting  the  ordinary 
business  of  life,  (c)     Some  even  go  so  far  as  to  assert 

retention   of  his  general    powers   and  Wilmot's    Notes,     58:     Blackford    v. 

faculties,  will  not  avoid  the  will,  unless  Christian,    1    Knapp,     P.   C    C.   73, 

the  delusion  were   such  as  wa>  calcu-  78. 

latcd  10  influence  the  testator  in  (V)  Viewing  the  subject  in  a  physio- 
making  it.  Banks  v.  G  aw,  L.  logical  light,  Dr.  Beck,  in  his  Medical 
,  ;  overruling  the  Jurisp.  ch.  13,  7th  ed.,  enumerates  the 
dicta  on  this  point  in  Waring  v.  following  forms  of  mental  alienation  : 
Waring,  6  Moo.  1'.  C  C  341-  and  1.  Mania;  2.  Monomania  (including 
Smith  v.  Tebbitt,  I..  R.,  1  I'.  &  I).  melancholy);  3.  Dementia;  4.  Inco- 
:.      See   also    I                             '.rven,  herein     madness    (holding    1      nrl    of 


WITNESSES.  233 

that  there  exists  a  form  of  the  disease,  to  which  they 
have  given  the  name  of  "  moral  insanity,"  in  which  no 
delusion  of  any  kind  exists;  but  the  patient's  moral 
character  is  revolutionized,  and  he  is  hurried  against 
his  will,  by  some  uncontrollable  impulse,  into  the 
commission  of  acts  of  violence  and  crime,  (d)  Al- 
though this  state  of  mind  is  not  recognized  in  our 
jurisprudence,  and  its  existence  as  matter  of  fact  is 
extremely  questionable,  still  the  above  discoveries  show 
how  arbitrary  and  imperfect  any  line,  drawn  by  law 
on  such  a  subject  as  the  present,  must  necessarily  be; 
and,  as  an  eminent  modern  writer  well  expresses  it, 
"The  subtile  and  shifting  transformations  ot  wild 
passion  into  maniacal  disease,  the  returns  of  the 
maniac  to  the  scarcely  more  healthy  state  of  stupid 
anger,  and  the  character  to  be  given  to  acts  done  by 
him  when  near  the  varying  frontier  which  separates 
lunacy  from  malignity,  are  matters  which  have 
defied   all   the  sagacity  and  experience  of  the  world." 

151.  Next,  with  respect  to  the  evidence  of  chil- 
dren. [nTmaturity  of  intellect  is  of  course  a  ground 
of  incompetency,  as  much  as  natural  defect  or  subse- 
quenl  deprivation  of  intellect.  Bui  there  is  another 
difficulty  in  dealing  with  this  subject,  namely  thai, 
while  the  intellecl  of  a  child  may  be  sufficiently 
developed,  to  enable  him  to  give  an  intelligible  ac- 
count of  what  he  has  seen  or  heard,  he  may  be 
mi. mi,   nol  only  of  the  nature  and   obligation  of  an 

middle  lia.Hu     intion,  epilepsy,  in 

,  -    I  idioti  in  ;  I"         lirium  in  in. 

ir  I./  Jurisp.  436,  477, 

iir-   1 1  ■      7th  ed. ;  D      F   V\  ins!    iv,  in    the   pa- 

of  /oh  I,  p. 

tein; 

Mmblani  1  the  I  h's   Hist.  J  IngL 

delirium     of     fev<  1.     li . ;  vol.  3i 


234 


INSTRUMENTS    OF    EVIDENCE. 


oath,  but  even  of  the  obligation  to  speak  the  truth; 
and  although,  in  the  case  of  an  adult  witness,  the 
want  of  early  religious  education  may  have  been 
supplied  by  experience  or  reflection,  it  would  be  idle 
to  look  for  these  in  a  person  of  tender  years.  For 
these  reasons,  the  testimony  of  children  has  always 
been  a  source  of  embarrassment  to  tribunals;  and  the 
laws  of  many  nations  have  cut,  instead  of  attempting 
to  unravel,  the  knot,  by  arbitrarily  rejecting  such 
testimony  when  the  child  is  under  a  definite  age  (/*) — 
a  course  objectionable  on  many  grounds;  and  princi- 
pally, as  it  all  but  proclaims  impunity  to  certain 
offenses  of  a  serious  nature  against  the  persons  of 
children,  which   it  is   next  to  impossible  to  establish 

4 

without  receiving  their  account  of  what  has  taken 
place.  Besides,  children  of  the  same  age  differ  so 
immensely  in  their  powers  of  observation  and  mem- 
ory, that  no  fixed  rule,  even  approximating  to  the 
truth,  can  be  laid  down.  In  this  case  at  least  it  may 
truly   be  said,   "Nature    makes    her    mock    of   those 


if)  The  general  rule  of  the  civil- 
ians, subject  however  to  several  excep- 
tions, was,  that  persons  under  the  age 
of  puberty  were  incompetent  to  give 
evidence  (Huberus,  Prael.  lur.  Civ.  lib. 
22,  tit.  5,  n.  2,  iv.  ;  Mascaid.  de  Prob. 

I.    1253  ;    1     Ev.    Poth.    §    7S9). 

•  of  their  authorities  say  that 
1  i  1 1 1 1  • . rs  under  twenty  years  were  re- 
jected  in  criminal  cases.  Mascard.  de 
I  '  I.  1320,   N.  9  et  seq.  ;  and 

1253,  N.  14.  This  rule  appears  to 
have  been  based  on  t lie  language  of 
the   !  .  tit.  17,  1.   2,  §  1): 

"  Itri]  imnibus    offi<  iis   civilibus 

debet  ab.stiucre  ;  but  more  particularly 
on  lib.  22,  tit.  5,  1.  3,  £  5  :  '•  Lege 
Julia  <le  vi  cavetur,  ne  hac  lege  in 
renin  testimonium  dicere  iiceret,  qui 
se  ab  to,  parenteve  ejus  liberaverit : 


quive  impuberes  erunt,  &c." — rather  a 
frail  foundation  for  the  position,  that 
the  jurisprudence  of  ancient  Rome 
rejected  the  testimony  of  minors  in 
general  ;  for  the  law  just  quoted  only 
does  so  on  certain  capital  charges  of 
public  violence.  Expressio  unius  est 
exclusio  alterius ;  and  we  have  the 
positive  testimony  of  Quintilian,  that 
in  his  time  the  evidence  even  of  very 
young  children  was  occasionally  re- 
ceived, or  at  least  was  not  rejected  as 
matter  of  course.  See  Inst.  Orat.  lib. 
5,  c.  7,  ver.  fm.  ;  and  Pothier  in  loc.  cit. 
The  Hindu  law  seems  to  have  rejected 
the  evidence  of  minors  under  fifteen — 
an  age  in  that  climate  corresponding 
probably  to  twenty  or  more  in  ours. 
Translation  of  Pootee,  c.  3,  sect.  8,  in 
Halhed's  Code  of  (Jmioo  Laws. 


WITNESSES  235 

systems  of  tactics,   which  human  industry  presents  as 
leading-strings  to  human  weakness."  (g) 

152.  As  to  the  old  law  on  this  subject,  our  an- 
cestors adopted  the  maxim  "  minor  jurarc  non  potest," 
(//)  but  with  some  exceptions — at  the  age  of  twelve 
years,  for  instance,  an  infant  might  be  called  on  to 
take  the  oath  of  allegiance,  &c.  (z)  And  although, 
as  will  be  shown  presently,  the  evidence  of  children 
was  often  rejected,  it  was  not  solely  on  the  ground  of 
their  supposed  incapacity  to  take  an  oath  ;  for  a 
difficulty  was  likewise  felt,  in  fixing  the  age  at  which 
they  should  be  held  responsible  to  the  criminal  law, 
— a  matter  now  fully  settled  thus,  that  for  this  purpose 
fourteen  is,  with  some  few  exceptions,  full  age  ;  that 
between  seven  and  fourteen  an  infant  is  presumed  to 
be  doli  incapax,  but  may  be  shown  to  be  otherwise; 
but  that,  under  seven,  there  is  (whether  rightly  or 
not)  a  prsesumptio  jusis  et  de  jure  that  he  cannot 
have  a  mischievous  discretion.  (/) 

153-  Sir  Edward  Coke  in  his  1st  Institute  (/C-) 
stales  broadly  that  a  person  "not  of  discretion,"  can- 
not be  a  witness;  and  in  another  part  of  the  same 
work,  (/)  he  defines  the  age  of  discretion  to  be  four- 
teen years.  More  than  half  a  century  later,  Sir 
Matthew  Hale  in  his  Pleas  <>f  the  Crown  (m)  lays 
down  the  law  thus  "Regularly  an  infant  under 
fourteen  years  is  nol  t<>  be  examined  upon  his  oath 
as  a  witness;  but  ycl  the  condition  of  his  person,  as 
if  he  be  intelligent,  or  the  nature  of  the  fact,  may 
allow  an  examination  of  one  under  that   age;  as  in 

(g)  3  Benlh.  Jud.  Ev.  304.  (/-)  <>>■  Litt.  6  b. 

(//)  e...  I  itt.  17-j  l».  1/ ,  1  ,,   1  11.  247  1,. 

[i)  1    ,.  1  itt.  '  -  ;..  7-  1,,  172  1..  (/«)  1  Hal  ,  P.  C.  3  12  .  bi  e  also  Id, 

(j)  \    Bla  ksl,   <  < .1111.1.   22,  23;    i  634;  and  a  Id.  279, 
1 1   :   ,  i                   eq,  ;  and  infra,  bk. 
3,  pt.  2,  1  li.  2. 


236  INSTRUMENTS    OF    EVIDENCE. 

ca^c  of  witchcraft,  an  infant  of  nine  years  old  has  been 
allowed  lo  be  a  witness  against  his  own  mother.  And 
the  like  may  be  in  a  rape  of  one  under  ten  year, 
upon  the  stat.  of  18  Eliz.  c.  6.  And  the  like  hath 
been  done  in  case  of  buggery  upon  a  boy,  upon  the 
stat.  25  lien.  8,  c.  6.  And  surely  in  some  cases  one 
under  the  age  of  fourteen  years,  if  otherwise  of  a 
competent  discretion,  may  be  a  witness  in  case  of 
treason."  In  another  j>lace,  however,  («)  after  telling 
us  that  instances  have  been  given  of  very  young  wit- 
nesses sworn  in  capital  causes,  viz.,  one  of  nine  years 
old,  he  adds,  "  Yet  such  very  young  people  under 
twelve  years  old  I  have  not  known  examined  upon 
oath,  but  sometimes  the  court  for  their  information 
have  heard  their  testimony  without  oath,  which,  pos- 
sibly being  fortified  with  concurrent  evidences,  may 
be  of  some  weight,  as  in  j  cases  of  rape,  buggery, 
witchcraft,  and  such  crimes,  which  are  practiced  upon 
children."  In  the  case  of  Young  v.  Slaughterford,  (0) 
T.  T.  1709,  which  was  an  appeal  of  murder,  tried  at 
bar,  L.  C.  J.  Holt  held,  that  an  infant  under  twelve 
years  of  age  might  be  admitted  as  a  witness,  if  he 
knew  the  danger  of  an  oath  ;  and,  that  appearing,  he 
was  admitted.  But  in  R.  v.  Travers,  (/)  at  the  King- 
ston spring  assizes  of  1726,  which  was  an  indictment 
for  a  rape  on  a  child  under  the  age  of  seven  years,  L. 
C.  1).  Gilbert  rejected  the  evidence  of  the  child,  and 
the  prisoner  was  acquitted.  A  fresh  indictment  was 
then  found  for  assault  with  intent  to  ravish,  which 
was  tried  before  L.  C.  J.  Raymond.  The  child  had  in 
the  meantime  attained  the  age  of  seven,  and  on  its 
evidence  being  objected  to,  on  the  ground  that  a  child 
six  or  seven   years  ought,  for  the  purposes   of  testi- 

hi)   2  Hale.   P.   I   .  283-4.  (/)    r  ^tr-'"  7°°- 

(0)  11  Mod.  - 


WITNESSES.  237 

mony,  to  be  considered  in  the  same  light  as  a  lunatic 
or  madman,  the  counsel  for  the  prosecution  cited  a 
case  at  the  Old  Bailey,  in  1698,  where  C.  B.  Ward 
admitted  the  evidence  of  a  child  under  ten,  which  had 
been  examined  as  to  the  nature  of  an  oath,  and  had 
given  a  reasonable  account  of  it.  The  Lord  Chief 
Justice,  however,  rejected  the  evidence,  and  cited  the 
case  of  one  Steward,  who  was  tried  at  the  Old  Bailey 
in  1704,  for  rapes  on  two  children;  in  the  first  of 
which  the  child  was  ten  years  old.  and  vet  she  was 
not  admitted  as  a  witness,  until  other  evidence  had 
been  given  which  tended  strongly  to  show  the  guilt 
of  the  defendant,  and  until  the  child  herself  had 
given  a  good  account  of  the  nature  of  an  oath.  The 
second  child  was  between  six  and  seven  years  old  ; 
and  it  was  unanimously  agreed  that  one  so  young 
could  not  be  admitted  to  be  an  evidence;  and  on  that 
ground  her  testimony  was  rejected.  But  although  L. 
C.  B.  Gilbert  rejected  the  evidence  of  the  child,  in  the 
fust  case  of  k.  v.  Travers,  it  was  probably  on  the 
ground  shr  was  ignorant  of  the  nature  of  an  oath,  or 
deficienl  in  natural  intelligence;  for  in  his  Tuatise 
on  Evidence  (</)  he  lays  down  tin-  rule  thus — "Chil- 
dren under  the  age  <>f  fourteen  air  not  regularly 
admitted  as  witnesses,  and  yet  ;il  twelve  they  are 
obliged  to  swear  allegiance  in  the  leet.  There  is  no 
time  fixed  wherein  they  are  t<>  be  excluded  from  evi- 
dence; but  the  reason  and  sens<  of  their  evidence  is 
to  appeal  from  the  questions  propounded  to  them,  and 
their  an  wei  to  th<  m."  And  lastly,  during  the  argu- 
ment in  t  h  of  ( )m\  chund  v.  Barker,  (r)  in  1  74  |, 

We      llinl      L.     C.      |.      I.ee      illloMllhlL'      toll!)-. (I,    who    WAS 

relying  on  the  language  of  Sii  Matthew  Male  in  on 
el  1  he  pa    ag<  3  above  r<  ferred  to,  t  hal   it  had  been  de- 

■    !        i||,  41I1  ed,  (r)    I  Alk.  29. 


23S  INSTRUMENTS    OF    EVIDENCE. 

termined  at  the  Old  Bailey,  upon  mature  considera- 
tion, that  a  child  should  not  be  admitted  as  an  evi- 
dence without  oath  ;  and  L.  C.  B.  Parker  added,  that 
it  was  so  ruled  at  Kingston  assizes  before  Lord  Ray- 
mond. 

154.  Through  all  this  inconsistency  and  confusion 
we  can  trace  two  principles  working  their  way.  1. 
That  if  the  testimony  of  an  infant  of  tender  years  is  to 
be  received  at  all,  it  ought  to  be  received  from  the  in- 
fant itself,  and  not  through  a  statement  presented  ob- 
stetricante  manu.  2.  That  a  witness  being  an  infant 
of  tender  years,  is  no  ground  for  relaxing  the  rule, 
"  In  judicio  non  creditur  nisi  juratis."  (s)  At  length, 
in  1779,  both  these  principles  received  a  solemn  judi- 
cial recognition  in  R.  v.  Brasier,  (7)  which  is  the  lead- 
ing case  on  the  subject.  The  prisoner  was  indicted 
for  an  assault  with  intent  to  commit  a  rape  on  an  in- 
fant under  the  age  of  seven  years,  who  was  not  exam- 
ined as  a  witness;  and  the  chief  evidence  forjhe  pros- 
ecution was  the  account  she  had  given  of  the  transac- 
tion to  two  other  persons.  The  prisoner  having  been 
convicted,  the  case  was  considered  by  the  judges,  who 
decided  that  the  conviction  was  wrong.  They  held 
unanimously  that  "no  testimony  whatever  can  be 
legally  received  except  upon  oath  ;  and  that  an  infant, 
though  under  the  age  of  seven  years,  may  be  sworn  in 
a  criminal  prosecution,  provided  such  infant  appears, 
on  strict  examination  by  the  court,  to  possess  a  suffi- 
cient knowledge  of  the  nature  and  consequences  of  an 

(s)  Cro.  Car.  64.  The  prisoner  having  been   acquitted 

(t)  1    Leach,  C  I..  199;  1   East,  P.  on     the    unsworn    testimony    of    the 

C.  443.     It   is  to   be   remarked  that  a  child,  the  judge  mentioned  the  matter 

few  years    pi  ;\   similar  opinion  to    the    other    judges,    a    major. ty   of 

had  been   expressed     iy  Gould,  J.,  on  whom  agreed  with  him.    R.  v.  Powell 

an  indictment    for  rape  on  an    infant.  1  Leach's  Crown  Law,  no. 
between  six     and    seven    vear^  <>f  age 


WITNESSES.  239 

oath  ;  for  there  is  no  precise  or  fixed  rule,  as  to  the 
time  within  which  infants  are  excluded  from  giving 
evidence;  but  their  admissibility  depends  upon  the 
sense  and  reason  they  entertain  of  the  danger  and  im 
piety  of  falsehood,  which  is  to  be  collected  from  their 
answers  to  questions  propounded  to  them  by  the 
court ;  but  if  they  are  found  incompetent  to  take  an 
oath,  their  testimony  cannot  be  received." 

155.  Brasier's  case  settled  the  modern  law  and 
practice,  relative  to  the  admissibility  of  the  testimony 
of  children.  As,  in  the  criminal  law,  "malitia  supplet 
setatem,"  (ji)  so  here  the  maxim  of  the  canonists  was 
followed  ;  "  prudentia  supplet  aetatem  ; "  (x)  —  the 
rule  having  been  thus  stated  by  Aldcrson,  B. :  "It 
certainly  is  not  law  that  a  child  under  seven  cannot  be 
examined  as  a  witness.  If  he  shows  sufficient  capac- 
ity on  examination,  a  judge  would  allow  him  to  be 
worn."!  y)  And  although,  since  the  32  &  $3  Vict,  c 
68,  s.  4,  it  is  no  longer  necessary,  in  order  to  render  chil- 
dren of  tender  years  admissible  as  witnesses,  that  they 
should  be  sworn,  or  be  able  to  understand  the  nature 
and  obligation  of  an  oath,  yet — inasmuch  as  their  evi- 
dence  would  even  now  be  inadmissible,  if  they  ap- 
peared not  to  understand  the  difference  between  truth 
and  falsehood  1  :)  —  it  follows,  as  was  said  by  the  court 
in  Brasier's  ca  '.that  their  admissibility  still  depends 
on  "the  sen  <■  and  reason  they  entertain  of  the  danger 
and  impiety  of  falsehood;  which  is  to  be  collected 
from  their  answers  to  questions  propounded  to  them 
by  thi-  «  .int.''  Whether  the  child's  evidence  is  admis- 
sible, if  thi  e  and  reason"  "of  the  danger  and 
impiety  of   fal  'hood"  be  owing  merely  to  special  in- 

Dy.  i'  t  b  ;  1  II   '  .  I'.  C.       ;  4  (v)  R.   v.   Perkins,    2    Moo.  C.  C 

1;                                  i  212.  139. 

[nst,  Jur.  Can.  li!>.  2,  (z)  See  supra,  .'  [48,  note  (q). 
tit.  iu,  g  5. 


24o  INSTRUMENTS     OF    EVIDENCE. 

struction,  given  to  the  child  with  a  view  to  the  trial, 
and  be  not  the  result  of  the  child's  general  religrious 
education,  lias  been  made  matter  of  question.  In  R. 
v.  Williams,  (a)  which  was  an  indictment  for  murder, 
a  female  child  of  eight  years  old  was  called  as  a  wit-, 
ness.  It  appeared  that,  up  to  the  death  of  the  de- 
ceased, the  child  had  never  heard  of  God,  or  of  a 
future  state  of  rewards  and  punishments,  had  never 
prayed,  and  did  not  know  the  nature  of  an  oath  ;  since 
that  time  she  had  been  visited  twice  1>\  a  clergyman 
who  had  given  her  some  instruction  as  to  the  nature 
and  obligation  of  an  oath  ;  but  she  gave  a  very  con- 
fused account  of  it,  and  had,  says  the  report,  "  no  in- 
telligence as  to  religion  or  a  future  state."  Her  tes- 
timony was  objected  to  on  the  ground,  that  if  it  were 
sufficient  that  a  witness  should  understand  the  nature 
of  an  oath,  merely  from  information  recently  com- 
municated, a  clergyman  might  always  be  called  to 
instruct  a  witness  on  that  subject,  when  he  came  into 
the  box  to  be  examined  on  the  trial.  And,  the  coun- 
sel for  the  prosecution  having  cited  R.  v.  Wade,  i 
Moo.  C.  C.  86,  Patteson,  J.,  said,  "  I  must  be  satisfied 
that  this  child  feels  the  binding  obligation  of  an  oath, 
from  the  general  course  of  her  religious  education. 
The  effect  of  the  oath  upon  the  conscience  of  the 
child,  should  arise  from  religious  feelings  of  a  per- 
manent nature,  and  not  merely  from  instructions,  con- 
fined to  the  nature  of  an  oath,  recently  communicated 
to  her  for  the  purposes  of  this  trial ;  and  as  it  appears 
that,  previous  to  the  happening  of  the  circumstances 
to  which  this  witness  comes  to  speak,  she  had  had  no 
religious  education  whatever,  and  had  never  heard  of 
a  future  state,  and  now  has  no  real  understanding  on 
the  subject,  1   think  that  I  must  reject  her  testimony." 

(a)  7  c.  &  I\  320. 


WITNESSES.  241 

But  although  ttiere  can  be  no  doubt  of  the  correct- 
ness  of  the  decision  in  the  above  case,  nor  that  the 
circumstance,  that  the  child  had  been  instructed  in 
the  nature  of  an  oath  after  the  offense  had  been  com  ■ 
mited,  was  one  for  the  judge  to  consider,  when  called 
on  to  decide  as  to  her  capacity  to  be  sworn  ;  the 
dogma — if,  indeed,  Patteson,  J.,  intended  to  lay  it  down 
— that  the  child  was  incompetent  to  take  an  oath,  be- 
cause her  sense  of  the  binding  obligation  of  the  oath 
was  not  the  result  of  her  general  religious  education, 
was  at  variance  with  other  authorities,  (a)  and  is  inde- 
fensible on  principle. 

156.  When  a  material  witness  in  a  criminal  case 
is  an  infant  of  tender  years,  (ft)  the  practice  has  been 
for  the  judge  to  examine  him,  with  the  view  of  ascer- 
taining whether  he  is  aware  of  the  nature  and  obliga- 
tion of  an  oath,  and  the  consequences  of  perjury.  And 
if  it  is  ascertained  before  the  trial,  that  a  material  wit- 
ness i  of  tgnder  years  and  devoid  of  religions  knowl- 
edge, the  court  will,  in  its  discretion,  postpone  the 
trial,  and  direct  that  he  shall  in  the  meantime  receive 
due  instruction  on  the  subject.  (/)  But  in  a  recent 
case,  where  a  father  was  charged  with  violating  his 
daughter,  aged  twelve,  Alderson,  B.,  refused  to  post- 
pone the  trial  for  the  purpose  of  her  being  taught  the 
nature  of  an  oath ;  stating  thai  all  the  judges  werebf 
opinion  thai  it  was  an  incorreel  proceeding;  that  it 
wa    lik<    preparing  or  getting  up  a  witness  for  a  par- 

Bul  '  lias  a  righl  to 

aixl  ' 

■  fra.  if  ■  .  liim  la 

r      be  d 

1      1     ,  1  d. ;  1  I'liill. 

lo  be  1  1.  :  T.-iyl.    E\     1 2 17.  yu 

the  general  .  the      ed   ;   1   I  C.  L.  .   R. 

v.  N  1.     146  ;  R.  v 

I  ill      ;   'if      B  1  Cox,  Cr.  Ca.  23, 

[6 


242  INSTRUMENTS    OF    EVIDENCE. 

ticular  purpose,  and  on  that  ground  was  very  objec- 
tionable. {(/  )  [f  this  be  correctly  reported,  not  only 
is  it  at  variance  with  a  series  of  previous  authorities. 
(<•)  but,  as  is  remarked  in  the  text  work  where  the 
ease  is  found, "  By  the  strict  application  of  this  rule,  a 
parent,  by  neglecting  his  moral  duty  as  to  the  educa- 
tion of  his  child,  may  thus  obtain  an  immunity  for  the 
commission  of  a  heinous  crime."  (/") 

157.  On  trials  for  homicide,  the  general  rule  of 
law  which  rejects  second-hand  or  hearsay  evidence  is 
relaxed,  so  far  as  to  render  admissible  the  declarations 
of  the  deceased  as  to  the  danse  of  his  daath,  provided 
they  were  made  by. him  at  a  time  when  he  was  under 
the  conviction  that  death  was  impending.  (<£r)1    This 

((/)  I  Phill.  Ev.  10,  10th  ed.  (/)  r  Phill.  Ev.  to,  note  (3),  icth  cd. 

(e)  See  supra,  note  (c).  (g)  See  infra,  bk.  3,  pt.  2,  ch.  4. 

1  See  ante,  note  1,  p.  113.  Declarations  by  third  persons,  in 
reference  to  the  offense  with  which  the  defendant  is  charged, 
are  hearsay,  and  consequently  inadmissible  in  evidence  (Ber- 
gen v.  People,  17  111.  426;  State  v.  Reidel,  26  Iowa,  4  30 ;  Cheek 
v.  State,  35  Ind.  492;  State  v.  Vincent,  24  Iowa,  570).  Hence, 
on  an  indictment  for  murder,  the  admissions  of  oilier  persons 
that  they  killed  the  deceased  are  not  evidence  (State  v.  Dun- 
can, 6  Ired.  236;  Smith  v.  State,  9  Ala.  990).  And  evidence 
of  threats  by  other  persons  is  inadmissible  (State  v.  Duncan, 
6  Ired.  236).#And  so  of  declarations  of  the  deceased  before  his 
death,  that  he  was  about  to  disappear  (State  v.  Vincent,  24 
Iowa,  570).  But  if  such  third  persons,  on  being  examined  as 
witnesses,  had  implicated  the  prisoner  by  their  testimony, 
evidence  of  their  declarations  that  they  were  guilty  of  the 
is  admissible  to  discredit  them  (Wharton  on  Homi- 
cide, £  603 ;  Smith  v.  State,  9  Ala.  920).  In  conformity  with 
this  rule',  where,  on  trial  of  an  indictment  for  murder,  a  wit- 
ness for  the  prosecution  testified  that  she  had  seen  the  two 
defendants  come  from  a  room  where  the  dead  body  was  found, 
under  suspi<  ions  circumstances,  it  was  held  that  the  prosecu- 
ion  could  not  show  by  other  witnesses  that  she  at  once,  while 
giving  the  alarm,  gave  the  names  of  the  two  persons  thus  seen. 
And  with  this  accords  the  well-known  proposition  that  a  wit- 
ness  cannot   in    general    be    corroborated   by  proof  of   prioi 


WITNESSES.  243 

exception  has  been  allowed,  partly  from  necessity,  partly 
on  the  ground  that  the  situation  of  the  party  may  fairly 
be  taken  as  conferring  on  what  he  says  a  religious  sane- 
lion  equal  to  that  supplied  by  an  oath,  and  partly 
because,  on  such  occasions,  witnesses  rarely  have  any 
interest  in  deceiving.  But  as,  when  children  of  tender 
years  are  examined  as  witnesses,  the  court  has  the 
of  inquiring  into  their  intelligence  and  reli- 
gious knowledge,  it  seems  to  follow  that  their  dying 
declarations  are  not  prima  facie  receivable  where 
those  of  an  adult  would  be  \x  for  the  latter  will  be  re- 
jected if  it  appears  that  the  deceased  was  a  person 
who,  through  ignorance  or  any  other  cause,  was  not 
likely  to  be  impressed  with  a  religious  sense  of  his 
approaching  dissolution.  (A)  In  R.  v.  Pike,  (z)  two 
prisoners  were  indicted  for  the  murder  of  a  child  four 
years  old  It  was  proposed  to  put  in  evidence  a 
statement  made  to  her  mother  by  the  child,  shortly 
before  her  death,  at  a  time  when  she  thought  she  was 
dying,  as  In  the  manner  in  which  she  had  been  treated 
by  the  prisoners.  Park,  J.  (with  the  concurrence  of 
Parke,  J.)  rejected  the  statement,  saying,  "As  this 
child  was  but  lour  years  old,  it  is  quite  impossible 
ih, it  she,  however  precocious  her  mind,  could  have 
hid  tint  idea  of  ;i  future  state  which  is  necessary  to 
make  such  a  declaration  admissible.  .  .  .  Indeed, 
I  think  thai  from  her  age,  we  musl  take  il  thai  she 
could  not  possibly  have  had  any  idea  of  that  kind." 
Bui  withoul  in  tin-  leasl  questioning  the  propriety  oi 
the  decision  in  this  case,  we  may  well  doubt  whether 

(//)  S.r-  infra,  bk.  3.  pt.  2.  ch.  4.  •   \  C.   ■   1 

tements  made  by  him  to  others.  Wharton  on  Homicide, 
§  603;  on  Crimiual  Law,  §  12,  7th  ed. ;  Commonwealth  v 
Jarae  .  99  Ma 

'  Bui  see  note  i,  p.  1 13. 


244  INSTRUMENTS    OF   EVIDENCE. 

the  above  dictum  can  be  supported,  There  certainly 
is  no  pr<esumptio  juris  et  de  jure  on  this  subject ;  and, 
however  unlikely  it  may  be,  that  a  chdd  of  four  years 
old  should  have  clear  ideas  respecting-  religion  and 
divine  punishment  for  falsehood,  yet  if  that  fact  were 
shown  affirmatively,  its  dying  declarations  ought  to  be 
received.  In  R.  v.  Perkins,  (/')  it  was  held  by  the 
judges  on  a  point  reserved,  that  the  dying  declarations 
of  a  child  ten  years  old  were  receivable  under  such 
circumstances.  But  the  question  still  remains,  at 
what  age  is  the  presumption  of  the  absence  of  intelli- 
gence, and  of  ignorance  on  religious  subjects,  to 
cease,  so  as  to  render  this  affirmative  proof  unneces- 
sary ?  Analogy  points  to  fourteen  years,  but  judicial 
decisions  are  silent. 

158.  As  to  the  effect  of  the  evidence  of  children 
when  received  :  "  Independently  of  the  sanction  of 
an  oath,"  says  a  text  work,  (/)  "  the  testimony  of 
children,  after  they  have  been  subjected  to  cross-ex- 
amination, is  often  entitled  to  as  much  credit  as  that 
of  grown  persons ;  and  what  is  wanted  in  the  perfec- 
tion of  the  intellectual  faculties,  is  sometimes  more 
than  compensated  by  the  absence  of  motives  to 
deceive.  It  is  clear  that  a  person  may  be  legally  con- 
victed upon  such  evidence,  alone  and  unsupported ; 
and  whether  the  account  of  the  child  requires  to  be 
corroborated  in  any  part,  or  to  what  extent,  is  a 
question  exclusively  for  the  jury,  to  be  determined  by 
them  on  a  review  of  all  the  circumstances  of  the  case, 
and  especially  of  the  manner  in  which  the  evidence 
of  the  child  has  been  given."  Quintilian  (m)  reckons 
among  doubtful  proofs  "parvulorum  indicia;  quos 
pars  altera   nihil   fingere,   altera  nihil  judicare  dictura 

(k)  2  Moo.  C.  C.  135.  (m)  Inst.    Orat.    lib.   5,    c.    7,    vers. 

(/)  Ph.  &  Am.  Ev.  7.  fin. 


U7TXESSES.  245 

est."  This  must  not,  however,  be  taken  too  literally  : 
some  children  indulge  in  habits  of  romancing,  which 
often  lead  them  to  state  as  facts,  circumstances  having 
no  existence  but  in  their  own  imaginations;  and  the 
like  consequence  is  not  unfrcquently  induced  in  other 
children,  by  the  suggestions  or  threats  of  grown-up 
persons,  acting  on  their  fears  and  unformed  judg- 
ment.1 

159.  2.  The  next  ground  of  incompetency  may 
be  styled  "incompetency  from  want  of  religion."  To 
the  natural  and  moral  sanctions  of  the  truth  of  state- 
ments made  by  man  to  man,  it  has  been  usual  in 
most,  if  not  in  all  ages  and  countries,  to  join  the  ad- 
ditional security  of  "An  Oath;"  i.  e.  a  recognition  by 
the  speaker,  of  the  presence  of  an  invisible  Being 
superior  to  man,  ready  and  willing  to  punish  any 
deviation  from  truth,  invoking  that  Being  to  attest 
the  truth.of  what  is  uttered,  and  in  some  cases  culling 
down  his  vengeance  in  the  event  of  falsehood.  (11) 
On  this  principle,  courts  of  justice  in  most  nations 
exacj  in  oath,  as  a  condition  precedent  to  the  recep- 
tion of  evidence;  and  among  us  in  particular,  "In 
judicio  non  creditur  nisi  jurat  is,"  (0)  has  been  a  legal 
maxim  from  the  earliest  time.  Hence  it  followed 
that,  by  the. common  law,  the  evidence  of  a  witness 
must  be  rejected  who  either  was  ignoranl  of,  or  who 
denied  the  existence  of  such  .1  superior  power,  or  re- 
fused to  give  the  required  security  to  the  truth  of  his 

(«)  See         ■     Uhs,  [ntrod.  2,  §§  56  6 1. 

<1- 

It  w;is  held,  in  Flanigan  v.  State,  25  Ark.  92.  and  in 
Warner  v.  State,  t<I.  \  17,  thai  "  there  is  no  prei  i  e  age  within 
\vhi<  1 1  1  hildren  are  absolutely  ex<  luded  ;is  witm-  li 

are  ol  sufficient  natural   intelligent  e,  and  1  omprehend  iiic  na- 
ture and  effect  of  an  oath,  their  testimony  should  be  admitted. 
Sec  cases  cited  in  note  1,  p.  212. 


TV'  INSTRUMENTS    OF    EVIDENCE. 

timony;  and  the  present  sourer  of  incompetency 
may  accordingly  be  considered  under  three  heads:  ist, 
Want  of  religious  knowledge;  2nd,  Want  of  religious 
belief;  and  3rd,  Refusal  to  comply  with  religious 
forms. 

160.  The  first  of  these  may  be  disposed  of  in  a 
word;  the  exception  arising  principally  in  the  case 
of  children,  whose  competency  has  already  been  con- 
sidered. (/)  But  the  same  principles  apply  where  an 
adult,  deficient  in  the  requisite  religious  knowledge,  is 
o  lie  red  as  a  witness.  (</) 

161.  2nd,  Incompetency  for  want  of  religious  be- 
lief. This  has  been  in  a  great  degree  anticipated  in  a 
former  part  of  this  chapter,  (r)  where  we  took  occa- 
sion to  show  the  injustice  and  absurdity  of  the  old  prac- 
tice, of  inflicting  incompetency  as  a  punishment  for  erro- 
neous opinions,  or  even  for  misconduct  not  likely  to 
affect  the  veracity  of  the  witness.  The  history  of  our  law 
on  this  subject  was  there  traced — the  gradual  estab- 
lishment of  the  great  and  sound  principles  that  courts 
of  justice  are  not  schools  of  theology — that  the  object 
of  the  law  in  requiring  an  oath,  is  to  get  at  the  truth 
relative  to  the  matters  in  dispute,  by  obtaining  a  hold 
on  the  conscience  of  the  witness ; — and,  consequently, 
that  every  person  ought  to  be  admitted  to  give  evi- 
dence, who  believes  in  a  Divine  Being,  the  avenger  of 
falsehood  and  perjury  among  men,  and  who  consents 
to  invoke,  bv  some  binding  ceremony,  the  attestation 
of  that  Power  to  the  truth  of  his  deposition.  But  how 
is  the  stal<-  of  mind  of  the  proposed  witness  on  these 
subjects  to  be  ascertained?  It  is  clear  that  disbelief 
in  the  existence  and  moral  Government  of  God  are 
not  to  be  presumed,  (s)     If  such  disbelief  exist,  this  is 

(/>)  -r  et  seq.  (r)  Supra,  65^  134  el 

k.  v.  White,  i  Leach,  C.  L.430;  in  6  Co.  76  a  ;  j  Greenl.  Ev.  §§  42 

1  Moo.  C.  C.  86.  and  370,  7th  ed. 


ir/T.YESSES.  247 

a  psychological  fact,  and  is  consequently  incapable  of 
proof  except  by  the  avowal  of  the  party  himself,  or 
the  presumption  arising  from  circumstances.  (7)  Ac- 
cording to  most  of  our  text  writers  and  the  usual  prac- 
tice, the  proper  and  regular  mode  of  procedure  is  by 
examining  the  party  himself;  (u)  while  some  author- 
ities g  so  far  as  to  assert  that  this  is  the  only  mode. 
(v)  Professor  Christian,  on  the  other  hand,  informs 
us,  that  he  "heard  a  learned  judge  declare  at  nisi  prius, 
that  the  judges  had  resolved  not  to  permit  adult  wit- 
nesses to  be  interrogated  respecting  their  belief  of  the 
Deity  and  a  future  state  ;"  (jt)  and  he  adds,  that  "  it  is 
probably  more  conducive  to  the  course  of  justice  that 
this  should  be  presumed  till  the  contrary  is  proved. 
And  the  most  religious  witness  may  be  scandalized  by 
the  imputation,  which  the  very  question  conveys." 
This  last  is  a  strange  argument;  for  the  most  respec- 
table witness  may  be  scandalized  by  questions  imput- 
ing to  film  any  possible  form  of  crime,  and  yet  such 
questions  may  be  and  frequently  are  put;  and  it  is  es- 
itial  for  the  ends  of  justice  that  the  right  to  put 
them  should  exist.  Some  of  the  American  authorities 
adopt  the  conclusion  of  Professor^  Christian  ;  but  for 
different  reasons.     Witnesses,  say  they, are  not  allowed 

to  be  questioned  as  to  their  religious  belief,  not  because 

it  tend    to  di  grace  them,  but    because  it   would  be  a 

personal  scrutiny  into  the  state  of  their  faith  and  con- 

•  '  in  to  the  spirit  of  free  institutions,  which 

oblige   no   man    to    avow    his    belief.    (    v)      Others  of 
them,  however,  as  ign  as  the  reason  "  that  the  witness 

1/ )  [ntrnd.  pt.  I,  §  12.  I  Vm.Ev.i2,]  mi. 

(«)   I'!.    ..CI       i  •      !  Ci  I  rd. 

(x)  3    i  i.'.i.    369,    note 

B.  .v.    i-    .■-  i.i  I      lor,  i    Peake,      i  |. 

II  ;  R.  v.  White,  I  Leach,  C.  L. 4  M    Grei  nl.   Ev.  £  370,  note  (2), 

R.  v.  Si  1  7th  ed, 

I  &  2  Vict.  c.  105. 


248  INSTRUMENTS    OF    EVIDENCE. 

could  not  be  permitted  in  court  to  explain  or  deny 
the  declarations  imputed  to  him,  because  it  would  be 
incongruous  to  admit  a  man  to  his  oath,  for  the  pur- 
pose of  ascertaining-  whether  he  had  the  necessary 
qualifications  to  be  sworn."  (Y)  But  surely  these 
views  are  extreme.  On  the  one  hand,  if  a  witness 
may  be  questioned  as  to  his  religious  opinions,  it  can 
only  be  on  the  assumption  that  a  knowledge  of  them 
would  in  some  way  assist  the  tribunal  ;  in  which  case 
they  become  facts  in  issue,  and  any  legitimate  evi- 
dence affecting  them  ought  to  be  received.  Very 
strong  proof  would  doubtless  be  required  to  induce  a 
court  to  disbelieve  the  answers  of  a  witness  on  these 
subjects  ; — for  the  question  is  not  what  his  religious 
opinions  have  been  at  any  former  period,  but  what 
they  are  at  the  moment  when  he  is  standing  in  the 
box.  On  the  other  hand,  it  is  an  abuse  of  the  great 
principles  of  civil  and  religious  liberty,  to  object 
to  such  an  examination  as  inquisitorial.  The  object 
of  it  is,  not  to  pry  into  the  speculative  views  of  the 
witness,  but  to  enable  the  tribunal  to  estimate  his 
trustworthiness — in  accordance  with  which  it  is  fully 
established,  that  he  cannot  be  questioned  as  to  any 
particular  religious  opinion,  or  even  whether  he  be- 
lieves in  the  Old  or  New  Testament.  No  question 
can  be  asked,  beyond  whether  he  believes  in  a  God, 
the  avenger  of  falsehood,  and  will  designate  a  mode 
of  swearing  binding  on  his  conscience  ;  (a)  and  if  he 
complies  with  these,  he  cannot  be  asked  whether  he 
considers  any  other  mode  more  binding,  for  such  a 
question  is  unnecessary  and  irrelevant,  (b)  And  we 
apprehend  that  although  these  questions  may  be  put, 

(?)  Apple-ton  on   Evid.  pp.  26.  37.  (b)  So'  held   by   the  judges   in   Th« 

{a)  See   the  authorities  cited  siipra,      Queen's  Case.  2  B.  &  B.  284. 
§§  134  tt  seq. 


U ITXESSES. 


249 


a  witness,  if  he  be  an  atheist  or  a  theist,  is  not  bound  to 
answer ;  for  by  so  doing  he  exposes  himself  to  an  in- 
dictment under  the  9  &  10  Will.  3,  c.  32,  and  perhaps 
also  at  common  law ;  and  it  is  an  established  principle 
that  no  man  is  bound  to  criminate  himself.  (V) 

162.  The  ordinary  form  of  swearing  in  English 
courts  of  common  law  is  well  known.  The  witness, 
holding  the  New  Testament  (d)  in  his  bare  right 
hand,  is  addressed  by  the  officer  of  the  court  in  a 
form  which  varies  according  to  the  nature  of  the  pro- 
ceedings. 

In  criminal  cases,  when  the  accused  is  in  custody, 
it  runs  thus  : 

"The  evidence  that  you  shall  give  to  the  court 
and  jury,  sworn  between  our  sovereign  lady  the 
Queen,  and  the  prisoner  at  the  bar,  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth  :  So  help 
you  ( rod." 

When  the  accused  is  not  in  custody  the  form  is 
the  same,  except  that  he  is  then  described  as  "  the  de- 
fendant" 

In  civil  eases  it  is — 

"The  evidence  that  you  shall  give  to  the  court 
and  jury,  touching  the  matters  in  question,  shall  be 
tli«-  truth,  the  whole  truth,  and  nothing  but  the  truth  : 
So  help  you  ( rod." 

The  witness  then  kisses  the  book. 

But    there   e;m    be    little   d<  tibl    that    if  a    witn< 
allows  him  elf  to   be  sworn   in  either  of  these  forms, 
or  i"  rhaps  in  any  other  form,  without  objecting,  Ik-  is 
liable  to  be  indicted  lor  perjury  if  his  testimonj  prove 
fa)  e.  ( e) 

tinciion    is    di  in    prac* 

(d  1  -  this   thnuld      t  1  • 

be    the    four    Evangelists;    but    the  Ho  232;! 


250  INSTRUMENTS    OF    EVIDENCE. 

163.  Numerous  instances  arc  to  be  found  in  our 
books,  of  the  application  of  the  principle,  that  wit- 
nesses arc  to  be  sworn  in  that  form  which  they  con- 
sider binding  on  their  consciences.  Members  of  the 
Kirk  of  Scotland,  (/)  and  others,  (^)  who  object  to 
kissing  or  touching  the  book,  have  been  sworn  bv 
lifting  up  the  hand  while  it  lay  open  before  them.  In 
Ireland  Roman  Catholics  arc  (or  at  least  were), 
sworn  on  a  New  Testament  with  a  cross  delineated 
on  the  cover.  (//)  Jews  are  sworn  on  the  Pentateuch, 
keeping  on  their  hats,  the  language  of  the  oath  being 
changed  from  "  So  help  you  God,"  to  "  So  help  you 
Jehovah."  Mohammedans  are  sworn  on  the  Koran, 
and  the  ceremony  adopted  in  R.  v.  Morgan  (z)  is  thus 
described.  The  book  was  produced.  The  witness 
first  placed  his  right  hand  Hat  upon  it,  put  the  other 
hand  to  his  forehead,  and  brought  the  top  of  his 
forehead  down  to  the  book,  and  touched  it  with 
his  head,  he  then  looked  for  some  time  upon  it ;  and 
on  being  asked  what  effect  that  ceremony  was  to 
produce,  he  answered  that  he  was  bound  by  it  to 
speak  the  truth.  In  a  recent  case  a  different  course 
\..  s  followed.  The  officer  of  the  court  asked  the  wit- 
ness what  form  of  oath  he  deemed  binding  on  his 
conscience,  who  replied,  the  oath  in  the  usual  words, 
provided  he  were  sworn  on  the  Koran  ;  and  he  was 
sworn  accordingly.  In  another  case  a  similar  ques- 
tion  was  put  to  a  Parsee  witness,  who  was  sworm  in 
the  same  manner,  except  that  instead  of  the  Koran 
he  was  sworn  on  a  book  which  he  brought  with 
m.  (//)     According   to    the  report  of  Omychund  v. 

(/)  Nfee  v.  Reid,  1  Peake,  23.  (*)  1  Leach,  C.  L.  54. 

(,£■)  Colt  v.  Out; on,  2  Sid.  6  ;  Mil-  (k)  These  statements  were  made  on 
drone's  I  Leach,  C.  L.  412  ;  the  authority  of  the  late  Mr.  Cole- 
Walker's  Case,  Id.  498.  man,  senior  clerk  10  the  late  L.  C  B. 

(h)   McXaily,  Ev.  97.  Pollock. 


WITNESSES.  251 

Barker,  (/)  part  of  the  ceremony  of  swearing  a 
Hindoo  consists  in  his  touching  the  foot  of  a  Brahmin, 
or,  if  the  party  swearing  be  himself  a  priest,  then  he 
touches  the  Brahmin's  hand  ;  but  if  this  is  deemed  by 
their  religion  essential  to  the  validity  of  an  oath,  it  is 
obvious  that  Hindoos  cannot  be  sworn  in  countries 
where  no  Brahmins  are  to  be  found.  This,  however, 
appears  not  to  be  their  only  form  of  swearing  ;  (m) 
and  we  understand  that,  at  least  in  some  parts  of 
India,  the  natives  are  sworn  on  a  portion  of  the 
water  of  the  Ganges.  A  Chinese  witness  has  been 
sworn  thus.  (;/)  On  getting  into  the  \vi  s-box 
he  knelt  down,  and  a  china  saucer  having  been  placed 
in  his  hand,  he  struck  it  against  the  brass  rail  in  front 
of  the  box  ami  broke  it.  The  officer  then  adminis- 
tered the  oath  in  these  words,  which  were  translated 
by  the  interpreter  into  the  Chinese  language :  "You 
shall  tell  the  truth  and  the  whole  truth;  the  saucer  is 
crackedTand  if  you  do  not  tell  the  truth,  your  soul 
will  be  cracked  like  the  saucer."  (0) 

164.  Whether  this  deference  to  the  conscience  of 
witnesses,  would  be  carried  so  far  as  to  allow  a  form 
of  oath  involving  rites  which  our  usages  would 
pronounce  improper  or  indecent;  a  ,  for  instance,  the 
of  an  animal,  which  was  often  resorted  to  in 
ancient,  and  occasionally  even  in  modern,  times;  (/>) 
•  a  tin-   swearer  placing  his  hand  under  the  thigh  oi 

1    \  1  k.  21.  G  »  et  seq. ;  Gro- 

Evid.  76,  77;   1  Stra.      tim  ■!  ■   Jur.  Bell,  ac   Pac.  lib.  2,  c.  i  ;, 
II  in.  $  10  ;  1  iv.  lib.  i,  ( .  j  |.    [t  i    said  that 

(«)  R.  v.  1  lan,  Car.  &  M.  1 1     i      ' 

>  P      e,  1  ■■-.    [41,  no  »n  ol 

i .  ay  ol 

to  a  newspapi  r  n 
poi  t,  tin  1   I'n  hi   w  .1  -    folio  <  ed    al    ' 

Middle  1  0  .  Apr  1   •_•,  1-53,  in      or  live  fowl.     U  ige  to 

a  cisc  'if  R.   v.  with  the  ad  li-      '  I.  -'.  p.  )'). 

tion  that  the  saucer  was  filled  with 


252  INSTRUMENTS    OF    EVIDENCE. 

the  person  by  whom  the  oath  is  administered,  as  was 
the  custom  of  patriarchal  times;  (^)  lias  not  been 
settled  by  authority.  The  great  question  in  all  such 
cases  would  be,  whether  the  ceremony  suggested 
was  malum  in  se,  and  the  scruples  of  the  witness 
against  being  sworn  in  any  other  way  were  ex- 
pressed bona  fide  ;  or  whether  they  were  affected 
merely  with  the  view  of  evading  the  obligation  of 
an  oath,  or  turning  the  administration  of  justice  into 
ridicule. 

165.  Atheism,  and  other  forms  of  infidelity  which 
deny  all  exercise  of  Divine  power  in  rewarding  truth 
and  punishing  falsehood,  remained  untouched  by 
Omychund  v.  Barker  and  the  above  decisions,  and 
continued  to  be  recognized  as  grounds  of  incompe- 
tency, (r)  But  it  was  gravely  questioned  whether 
this  state  of  the  law  ought  to  be  maintained,  at  least 
so  far  as  casual  evidence  was  concerned  ?  Was  it 
wise  to  leave  it  in  the  power  of  every  man  whose 
breast  was  the  repository,  perhaps  the  sole  repository, 
of  evidence  affecting  the  lives  and  fortunes  of  his 
fellow-citizens,  to  stifle  that  evidence  by  pretending  to 
hold  erroneous  views  on  the  subject  of  religion  ? 
And  even  supposing  the  atheism,  epicureanism,  &c, 
to  be  ever  so  unfeigned  and  genuine,  was  it  not  more 
properly  an  objection  to  the  credit  than  to  the  com- 
petency of  the  witness  ? — for  it  amounted  simply  to 
this,  that  out  of  four  sanctions  of  truth  one  had  no 
influence  on  his  mind,  (s)  The  only  case,  as  had  been 
well  observed,  in  which  "  Cacotheism,"  or  bad  religion 
was  a  legitimate  ground  for  the  exclusion  of  testi- 
mony, was    where    a    man   belonged  to  a  religion  the 

{//)  Gene»is,    ch.   xxiv.   ver.    2  ;    ch.  (s)  5  Benth.  Jud.  Ev.  125,  126.    Sea 

x'.vii.  ver.  29.  also   Introd.  pt.  1,  §§  16  et  seq.,  and 

(r)  See  Ma(kn  v.  Catanacli,  7  II.  &  pt.  2,  £  55. 
N.  360. 


U7TXESSES. 


253 


god  of  which  ordained  perjury  ;  (/)  and  the  fanatic 
whose  creed  allowed  mendacity  in  private  and  false 
swearing  in  public,  («),  was  more  dangerous  in  the 
witness-box  than  any  form  of  infidel  that  could 
present  himself.  Even  Atheism,  as  was  justly  re- 
marked by  Lord  Bacon,  (x)  "  leaves  a   man  to  sense, 


(/)  See  Benth.  Jud.  Ev.  kk.  9,  pt.  3, 
ch.  5,  s.  2. 

(it)  "Of  all  the  religious  codes 
known,  the  Hindoo  is  the  only  one 
by  which,  fn  the  very  text  of  it,  if 
correctly  reported,  a  license  is  in  any 
instance  expressly  given  to  false  testi- 
mony, delivered  on  a  judicial  occasion, 
or  for  a  judicial  purpose.  .  .  .  C; 
some  extrajudicial,  some  judicial,  and 
upon  the  whole  inconsiderable  variety 
and  to  no  inconsiderable  extent,  are 
specified,  in  which  falsehood,  false 
wi'.iiess,  false  testimony,  arc  expressly 
declared  to  be  allowable.  I.  False 
testimony  of  an  exculpative  tendency, 
in  behalf  of  a  person  accu  erl  of 
any  offen  >■  punishable  with  death. 
Three  cases,  however,  are  excepted, 
viz.:  1.  Where  tie-  offen  e  consists  in 
the  1 1 1 11 1  der  of  a  Brahmin  ;  or  2  (what 
■  omes  ■■•  thi  im<  th  ng),  a  cow  ;  or  3. 
In  the  drinking  of  wine,  the  offender 
being,  in  this  lati  of  'he-  r 

min  ccate.  .  .  .    In  the  1  ■  ition 

a  word  1 
be  varied  without  danger  of  misrepre- 
sent ilion ;   word   foi   word   they  itand 
as    I-  'If    a  1 

•■•  obtained   by  fal  te  wit- 
Mi    may  I"-  told  ;  a  • 
upon  ill"  day  of  ci  lebraiing   the 
riage,  if  on  thai   d  ly  the  mat 
liable  to  be  incomplete,  for  want  of 
givii  •  thai  time,  if 

three  01 

it.  on  th 

m :"  a  man 

daughter  many  ornaments,  an 

nblc  tu  give    them,  siw  h    t 


these,  if  told  to  promote  a  marriage, 
are  allowable.  If  a  man,  by  the 
impulse  of  lust,  tells  lies  to  a  woman, 
or  if  his  own  life  would  otherwise  be 
lust,  or  all  the  goods  of  his  house 
or  if  it  is  for  the  benefit  of  a 
B  lunin,  in  such  affairs,  falsehood  is 
vable'"  (Benth.  Jud.  Ev.  vol.  i. 
pp.  235,  236.  See  also  vol.  v.  p.  134). 
We  have  verified  his  reference  for 
tin-  r  extraordinary  statements.  The 
above  pa  ages  will  be  found  in  the 
translation  of  Pootee,  ch.  3,  s.  9,  in 
Halhed  1  odi  ol  <  rentoo  I  ,aws.  See 
further  on  this  subject.  Goodeve,  Kvid. 
114,  115;  and  the  Ordinances  of 
Me  iu,  ch.  B,  i  112,  translated  by  Sii 
William  Jones.  The  Iowei  orders  of 
I        .    all  hough     timorous    of    taking 

1  .1,  commonly 
consider   perjury   to    save   a    criminal 
I     nishment  eithei  . 

!  pea  adillo. 

To  these   instances  may  be  added   the 

pi  in  ipl      la       down    by    Ma  cardu  t, 

ins  to  clergymen, 

•.I'ii    con  ten 

to  be  in- 

,    that,   ii    the 

].m  l  w  i  t  n  ess  1 0 

tated   to  him  in  1  on< 

I-    io   .  "  pi  re  se  nihil 

illud,  quod   si  it,  s<  it   ut 
t  Pen     non   producitur  in 

in.  ted  ut  1 o,  ■  m  homo 

igm  quo   pioducitur." 

M  1  Q  u  ses  t .  5 ,  N  N 

:  1  ,     1    <  ireenl,    Ev.    §   247,  7th 
cd 
(•\  Bacon',  l       y  on  Superstition. 


254  INSTRUMENTS    OF    EVIDENCE. 

to  philosophy,  to  natural  piety, to  laws,  to  reputation; 

all  which  may  be  guides  to  an  outward  moral  virtue, 
though  religion  were  not;  but  superstition,  dismounts 
all  these  and  erecteth  an  absolute  monarchy  in  the 
minds  of  men."  And,  whatever  might  have  been 
urged  formerly  in  favor  of  the  exclusion  in  question 
it  seemed  inconsistent  to  retain  it  at  the  present  day  ; 
since  the  6  &  7  Vict.  c.  22  had  allowed  the  reception. 
in  the  British  colonics,  of  the  unsworn  testimony  of 
the  members  of  certain  barbarous  and  uncivilized 
races,  who  are  described  in  that  statute  (whether 
truly  or  not  is  immaterial  to  our  present  purpose),  as 
"destitute  of  the  knowledge  of  God  and  of  any 
relierious  belief."  A  similar  change  in  the  law  on  this 
subject,  had  been  effected  by  the  recent  legislation, 
of  some  of  the  United  States  of  America,  whereby 
the  want  of  religious  belief  was  treated  as  an  objec- 
tion to  the  credit  not  to  the  competency  of  a  wit- 
ness, (j)/)  And,  as  we  shall  see  presently,  our  own 
legislature  has  at  length  adopted  these  views.  (,;•) 

166.  The  third  ground  remains  to  be  noticed, 
namely,  the  refusal  by  the  person  called  as  a  witness 
to  comply  with  religious  forms, — in  other  words,  to 
guarantee  the  truth  of  his  testimony  by  the  sanction 
of  an  oath  in  any  shape.  A  perverse  refusal  to  be 
sworn  was  treated  as  a  contempt  of  court  ;  but  great 
difficult}'  hid  arisen  in  modern  times,  from  the  circum- 
stance t:  several  sects  of  Christians,  and  individual 
members  <>(  other  sects,  entertained  conscientious 
objection;  to  the  use  of  oaths  ;  relying  on  the  com- 
mand in  the  New  Testament,   "Swear  not  at  all."  (a) 

{)')  A  .,   Evid.  App.  272,  277,  gate   "  non   jurare  omnino  ;"  and   the 

27S.  prohibition  is  repeated   James  v.  12. 

(2)  See  32  &  33  Vict.  c.  6?,  s.  4.  *   Christians  consider    that    these 

(a)  Matt.    v.    34.      In    the    original  words  are  only  to  be  understood  with 

"  fir]    Oftodai     oAcoS,''    in    the    V11I-  reference  to  profane,  rash,  and  perhaps 


WITNESSES. 


255 


In  some  instances  the  legislature,  satisfied  that  these 
scruples  were  bona  fide,  judiciously  gave  way  to  them 
and  interposed  for  the  relief  of  the  parties,  by  substi- 
tuting for  an  oath  a  solemn  affirmation  or  declaration, 
rendering,  however,  a  false  affirmation  or  declaration 

evasive  swearing,  and  were   net  at  all  sees  thus :  "Woe   unto  you,  ye   blind 

intended   to  prohibit   oaths  taken  ac-  guides,  which    sav,    Wh  isoever   shall 

cording    to    the   teaching  of   the    Old  swear   by  the   temple,   it    i-    nothing; 
Testament,   "in   •ruth,   in    judgment, 


and  in  righteousness "  (Jerem.  iv.  2). 
The  disi  ontained  in   Matt,  v., 

commonly  called  the  Sermon  on  the 
Mount,  "f  which  the  above  passage 
forms  part,  is  directed  generally 
against  abuses  and  evasions  of  the 
moral  law  ;  all  intention  of  revoking 
any    pari    •  .    which    is   expressly  dis- 


but  whosoever  shall  swear  by  the  gold 
of  the  tempi  ■,  he  is  a  debtor.  Ye 
fools  and  blind  :  for  whether  is  greater, 

the  gold,  or  the  temple  that  sancti 
fieth  the  gold?  And,  whos  ever  shall 
swear  by  the  altar,  it  is  nothing;  but 
whosoever  sweareth  by  the  gift  that  is 
upon  it.  he  is  guilty.  Ye  fools,  and 
blind  :  for  wh<  ther  is  greater,  the  gift, 


claimed  (Yer.  17).  Thus  with  respect  to      or  the  altar  that  sanctifieth  the  gift? 


the   subject    in    question:    the    j 
were    commanded    to   swear    by    the 
name  of  >eut.  vi.  13),  and  were 

told    that    they    must    not    forswear 
hi  nisei   —  .  xix.   12).     Now,  the 


Whoso  then  fore  shall  swear  l>y  the 
altar,  sweareth  by  it  and  by  all  things 
thereon.  And  whoso  shall  swear  hv 
the  temple,  sweareth  by  it, and  by  him 
that   dwelleth   therein.     And   he  that 


i      non  on  th<    Mount  does  not  abro-      shall  sweat  by  heaven,  sweareth  by  the 


gate  this,  but,  on  the  contrary,  pro- 
ceed I  -wearing  by  cre- 
ated tin  Meet  swearing  by 
the  ■  Matt.  v.  ver.  33 

I  that  it  hath 
(qu.  to   them  ? 


throne  ol  Gi    I, and  by  him  thai  sitteth 
then  on."      One  I  ,  is  cer- 

tain, thai   if  tlir  w<  rd     "  Swear  n 
all  "  are  to  bi    u    del  tood   a--  an  abso- 
lute   prohibition    1 1|     > .  [ling    I  .• 
w  itness  undi  ,  the 


"  iftin'ni  r  ,,,,/'.;  ,"1  ••-.!    old      Ap      !     Paul   h      m  quivocally 


but  1  unto  the  Lord  1 

oaths :  Bul  I     >\  unto  you,  Swear  nol 

at   all  :  n  n  ;    for   it    is 

1101  by  tin-  earth  ;  for  it 

is  his  f...  ;■  111  ; 

for    il  :-i"K- 

1  by  thy  hi 

hair 
white  lei  your  commu- 

for 
whal  neth 

of  evil."      Tii 
■ubseq 

our 
Lord  adi 


'in!   thi  •  command  in  severe  I   of 
hi-.  "  Now 

tin-   things   whii  h    T  w  rite  unto  • 
behold,  i  !        not "  (I  lal.  i. 

J'  ■!.      "  (  iod     1  ■     my    w  it  Hi      ,    w  hum     I 

"   (]  '■  1    call    (.    .1 

't\  i.  23  ; 

;  1  .    1  i .  5  ; 

Philip.  1    6)      li  •  tin 

Hebi  1 6,  17)  also 

"  I  01  n 

and    an    oath    I  1    is  to 

1  an  end  ,"  and  n 

in  the  oath  ti  iself  lo 

Abrah  in  .    '.  n 


256  INSTRUMENTS    OF    EVIDENCE. 

punishable  as  perjury.  The  statutes  on  this  subject 
extended  to  Quakers,  (b)  Moravians,  (c),  and  Separa- 
tists ;  (J)  as  also  to  persons  who  had  been  Quakers  or 
Moravians,  but,  having  ceased  to  be  such,  still  con- 
tinual to  object  conscientiously  to  taking  oaths,  (e) 
The  difference  in  the  forms  of  affirmation  given  by 
these  statutes  is  singular.  In  the  case  of  Ouakcrs  and 
Moravians  it  runs  thus  : 

"  I  A.  B.  being  one  of  the  people  called  Quakers 
[or  one  of  the  persuasion  of  the  people  called 
Ouakcrs,  or  of  the  United  Brethren  called  Moravians 
as  the  case  may  be]  do  solemnly,  sincerely,  and  truly 
declare  and  affirm,"  &c. 

With  the  Separatists  it  is  : 

"  I  A.  B.  do,  in  the  presence  of  Almighty  God, 
solemnly,  sincerely,  and  truly  affirm  and  declare,  that 
I  am  a  member  of  the  religious  sect  called  Separatists, 
and  that  the  taking  of  any  oath  is  contrary  to  my 
religious  belief,  as  well  as  essentially  opposed  to  the 
tenets  of  that  sect  ;  and  I  do  also  in  the  same  solemn 
manner  affirm  and  declare,"  &c. 

In  the  two  remaining  cases  the  form  is: 

"  I  A.  B.  having  been  one  of  the  people  called 
Quakers  [or  one  of  the  persuasion  of  the  people 
called    Quakers,  or   of   the    United    Brethren    called 

-  - 

Moravians,  as  the  case  may  be],  and  entertaining  con- 
scientious objections  to  the  taking  of  an  oath,  do 
solemnly,  sincerely,  and  truly  declare  and  affirm." 

Members  of  other  Christian  sects,  the  tenets  of 
which  recognized  the  lawfulness  of  oaths,  were  still 
compellable  to  be  sworn  in  criminal  cases;  but  with 
respect  to  civil  cases,  it  was  enacted  by  the  17  &  18 
Viet.  c.  125,  s.  20,  that  "  if  any  person  called  as  a  wit- 

</•,   3  &  4  Will.  4,  C  49-  (d)  3  &  4  Will.  4,  c.  82. 

(<0  Id.  («f)  1  &  2  Vict.  c.  77. 


WITNESSES.  257 

ness,  &c.  shall  refuse,  or  be  unwilling  from  alleged 
conscientious  motives  to  be  sworn,  it  shall  be  lawful 
for  the  court  or  judge,  or  other  presiding  officer,  &c, 
upon  being  satisfied  of  the  sincerity  of  such  objection, 
to  permit  such  person,  instead  of  being  sworn,  to 
make  his  or  her  solemn  affirmation  or  declaration  in 
the  words  following,  viz. : 

"  '  I  A.  B.  do  solemnly,  sincerely,  and  truly  affirm 
and  declare,  that  the  taking  of  any  oath  is,  according 
to  my  religious  belief,  unlawful;  and  I  do  also  solemn- 
ly, sincerely,  and  truly  affirm  and  declare,'  "  &c. 

This  enactment  was  extended  to  criminal  cases  by 
24  &  25  Vict.  c.  66. 

Then  came  the  32  &  33  Vict.  c.  68,  s.  4,  which 
applies  to  every  "  person  called  to  give  evidence  in 
any  court  of  justice,  whether  in  a  civil  or  criminal 
proceeding,"  who  "shall  object  to  take  an  oath,  or  shall 
be  (  bjscted  to  as  incompetent  to  take  an  oath  ;"  and 
which  •  nacts,  that  "  such  person  shall,  if  the  presiding 
judge  is  satisfied  that  the  taking  of  an  oath  would 
have  it)  binding  effect  on  his  conscience,  make  the 
following  promise  and  declaration: 

"'I  solemnly  promise  and  declare,  that  the  evi- 
dence given  by  me  to  the  court  shall  be  the  truth,  the 
whole  truih,  and  not  hin-  hut  the  truth.'" 

Aii. I  thai  "any  person  who,  having  made:  such 
pro  1  and  declaration,  shall  willfully  and  corruptly 
give  false  evidence, shall  be  liable  to  be  indicted, tried, 
and    convicted    for    perjury    as    if    he   had   taken    an 

oath." 

And,— doubts  having  arisen  a,  to  the  extent  and 
aning  of  the  wool,  " couits  of  ju:   ice,"  and  "  presid- 
ing judge,"  in  the  above  statute,     it  was,  by  the  33  & 
34  Vict  c.  [.9,  s.   1,  enacted,  that   these  words  should 

"  be  de<  med  to  include  any  person  or  p<  1  on  ■  having, 
17 


25S  INSTRUMENTS    OF    EVIDENCE. 

by  law,  authority  to  administer  an  oath  for  the  taking 
of  evidence." 

167.  3.  Incompetency  from  interest.  The  6  &  7 
iVict.  c.  85,  abolishing  incompetency  in  witnesses  on 
the  ground  of  their  interest  in  the  matter  in  question, 
lias  been  already  referred  to.  (g)  And  although,  by 
the  operation  of  that  and  subsequent  enactments, 
competency  may  now  be  looked  on  as  the  rule,  and 
incompetency  the  exception,  still  it  will  be  advisable 
to  treat  the  whole  subject  of  incompetency  from  in- 
terest, as  it  existed  at  the  common  law  ;  and  then  to 
point  out  the  extent  to  which  it  has  been  modified  by 
statute.1 

{g)  Supra,%i43. 

1  And  very  many  of  the  slates  have  enacted  statutes  upon 
the  subject.  See,  as  to  rules  upon  the  subject  in  the  United 
States  courts,  Mumm  v.  Owens,  2  Dill,  475;  Green  v.  United 
States,  9  Wall.  655  ;  HubbelFs,  Case,  4  Ct.  of  CI.  37.     And   in 

Alabama — Brand  v.  Abbott,  42  Ala.  499;  O'Niel  v.  Rey- 
nolds, Id.  197  ;  Thomas  v.  Thomas,  Id.  120;  Mobile  v.  Jones, 
Id.  630. 

Arkansas — Giles  v.  Wright,  26  Ark.  476. 

California — -People  v.  McGunigill,  41  Cal.  429. 

Georgia — Anderson  v.  Wilson,  45  Ga.  25  ;  Hayden  v.  Mc- 
knight, 49  Id.  147  ;  Latimer  v.  Sayre,  45  Id.  468;  Veal  v.  Veal, 
Id.  511  :  Ouzts  v.  Seabrook,  47  Id.  359;  Rust  v.  Shackleford, 

Id-  538. 

Illinois — Mitchinson  v.  Cross,  5S  111.  366  ;  Jacquin  v.  Da- 
vWson,  49  Id.  82  ;  Steumbaugh  v.  Ilallam,  48  Id.  305. 

Indiana — Bishop  v.  Welch,  35  Ind.  521  ;  Noble  v.  Withers, 
36  Id.  193  ;  Peacock  v.  Albin,  39  Id.  25  ;  Fitzgerald  v.  Cox,  Id. 
84;  Hall  v.  State,  Id.  30. 

Iowa — K111  h  v.  Covvles,  34  Iowa,  259;  Reichart  v.  Buck- 
ingham, Id.  409;  Schmid  v.  Kreismer,  31  Id.  479. 

Kansas — State  v.  McCord,  8  Kan.  232;  McKean  v.  Massey, 
9  Id.  600. 

Maine — Payne  v.  Gray,  56  Me.  317;  State  v.  Cleaves,  59 
Id.    299;  Kelton   v.   Hill,   Id.  259;    Folsom   v.   Chapman,   Id. 

Maryland — Jones  v.  Jones,  36  Md.  447  ;  Downes  v.  Md., 
&c.  R.  R.  Co.  37  Md.  100. 


WITNESSES.  259 

168.  First,  then,  of  the  parties  to  the  suit.  "  Nemo 
in  propria  causa  testis  esse  debet,"  (  /i)  was  the  rule 
of  the  old  law — a  rule  which   applied  equally  to  civil 

(A)  I  Blackst.  Com.  443  ;  3  Id.  371.  22,  tit.  5,  1.  10;  Cod.  lib.  4,  tit.  20. 
See  also  Co.  Litt.  6  b.  It  was  the  1.  10  ;  Huberus,  Prrel.  Jur.  Civ.  lib.  22, 
same   in   she  civil   law.     See  Dig.  lib.      tit.  5,  n.  6. 

Massachusetts — Brooks  v.  Tarbell,  103  Mass.  496. 

Michig  in—G  >odrich  v.  Allen,  19  Mich.  250;  Moulton  v. 
Mason.  21   Id.   ?6.j 

Minnesota — State  v.  Die,  14  Minn.  35. 

Mississippi — Witherspoon  v.  Blewlett,  47  Miss.  570;  Rein- 
hardt  v.  Evans,  48  Id.  230. 

Missouri — Gavin  v.  Williams,  50  Mo.  201 ;  Looker  v.  Davis, 
47  Id.  140. 

New  Hampshire — Stearns  v.  Wright,  51  N.  H.  600;  Ballou 
v.  Tilton,  52  Id.  605. 

New  Jersey — Walker  v.  Hill,  21  X.  J.  Eq.  191. 

New  York — Nourry  v.  Lord,  3  Abb.  (N.  Y.)  App.  Dec.  392; 
Hildebrant  v.  Crawford,  6  Lans.  502;  Bralich  v.  People,  65 
Barb.  48;  Hatch  v.  Pengret,  64  Barb.  89;  Hildreth  v.  Shepherd, 
65  \(\.~2<>5  ;  Livingston  v.  Keetch,  34  N.  V.  Superior  Ct.  547  ; 
Winston  v.  English,  14  Abb.  Pr.  X.  S.  199;  44  How.  Pr.  398, 
.<  ;  Per  contra,  Morgan  v.  Whittaker,  Id.  127;  Thoule  v. 
Ritter,  [3  Abb.  Pr.  X.  S.  i  ■)  ;  Strong  v.  Dean,  55  Barb.  337; 
Carr  v.  Great  Western  Ins.  Co.  3  Daly,  140. 

North  Carolina — Howeiton  v.  Lilt  inier,  68  X.  C.  370; 
Gilmer  v.  McVairy,  69  N.  C.  535;  State  v.  Bryant,  Id:  444 ; 
Whitesides  v.  Green,  64  Id.  307;  State  v.  Maxwell,  Id.  313; 
Meroney  v.  Meroney,  Id.  312;  Isennour  v.  Isennour,  64  Id. 
640;  Brower  v.  Hughes,  Id.  642. 

Ohio—  Hubbel!  v.  Hubbell,  •■•  Ohio  St.  208. 

Pennsylvania  —Williams  v.  Davis,  69  Pa.  Si.  21  ;  Mi  Clelland 
r.  West,  70  Id.  <  nnell  v.  <  Jrawford,  59  Id.  196. 

South  Carolina — Guery  v.  Kinsler,  3  S.  C.   1  •  j 
Vermont — Walker  w  Taylor,  13  Vt.  612;  Streeter  v.  Evans, 
4}  Id.  27;   Poquel   v.  North   Hero,  Id.  91  ;    M01  e  v.  Low,  bl 
561  ;  Re  1  oster,  Id.  570 ;  Batchelder  v.  Kinney,  Id.  150. 

Wisconsin-  Potter  v.  Menasha,  30  Wis.  (.92;  Cornell  v, 
B  •'  "'  Id.  17;:  Fii  1  National  Bank  ol  Wood,  Id.  500; 
Daniel  1  v.  I  0  ter,  l 

In  the  courts  oi  the  United  States  a  defendant  in  a  crim- 
inal case  cannot  testify  in  his  own  behalf,  although  \>\  statute 
his  testimony  is  admissible  in  the  courts  of  the  state  (United 


260  INSTRUMENTS    OF    EVIDENCE. 

and  to  criminal  proceedings;  (/)  and  which, according 
to  the  best  authorities,  was  founded  solely  on  the  in- 
terest which  the  parties  to  the  suit   were  supposed  to 

(i)   R.  v.  Payne,  I-.  Rep.  i  C.  C.  349.      is    not   a    competent   witness    for    the 
oners  are   indicted      other.     R.  v.  Thompson,  L.  Rep.  1  C. 
ami  tried  together,  the  wife  of  the  one      C.  377. 

States  v.  Hawthorne,  1  Dill,  422).  An  act  allowing  a  party 
or  person  interested  to  testify  is  not  an  ex  post  facto  law,  but 
operates  only  as  a  removal  of  a  present  disability,  and  does 
not  affect  any  vested  right,  or  impair  the  obligation  of  any 
contract.     Wathall  v.  Wat  hall,  42  Ala.  450. 

The  statutes  of  various  states  allowing  defendants  in  crim- 
inal proceedings  to  be  sworn  in  their  own  behalf,  contain  a 
proviso  that  a  refusal  to  testify  in  their  own  behalf  shall  not 
be  deemed  to  be  a  presumption  against  the  accused.  This 
proviso,  however,  is  criticised  by  Judge  Appleton,  in  State  v. 
Cleaves,  59  Me.  298,  as  folows  : 

11  The  defendant,  a  married  woman,  was  indicted  for  being 
a  common  seller  of  intoxicating  liquors.  The  presiding 
justice  instructed  the  jury, .' that  the  fact  that  the  defendant 
did  n  »t  go  upon  the  stand  to  testify,  was  a  proper  matter  to  be 
taken  into  consideration  by  them  in  determining  the  question 
of  her  guilt  or  innocence.'  To  this  instruction  exceptions 
were  seasonably  taken.  The  statute  authorizing  the  defendant 
in  criminal  proceedings,  at  his  own  request,  to  testify,  was 
passed  for  the  benefit  of  the  innocent,  and  for  the  protection 
of  innocence.  The  defendant  in  criminal  cases  is  either  inno- 
cent or  guilty.  If  innocent,  he  has  every  inducement  to  state 
the  facts  which  would  exonerate  him.    The  truth  would  be  his 

lection.  There  can  be  no  reason  why  he  should  withhold 
it,  and  every  reason  for  its  utterance.  Being  guilty,  if  a  wit- 
ness, a  statement  of  the  truth  would  lead  to  his  conviction, 
and  justice  would  ensue.  Being  guilty,  and  denying  his  guilt 
as  a  witness,  an  additional  crime  would  be  committed,  and  the 
peril  of  a  conviction  for  a  new  offense  incurred.  But  the  de- 
fendant, having  the  opportunity  to  contradict  or  explain  the 
inculpative  facts  proved  against  him,  may  decline  to  avail 
himself  of  the  privilege  of  testifying,  is  an  existent  and  ob- 
.ious  fact.  It  is  a  fact  patent  in  a  case.  The  jury  cannot 
avoid  perceiving  it.  Why  should  they  not  regard  it  as  a  fact 
of  more  or  less  weight  in  determining  the  guilt  or  innocence 
of  the  accused.  All  the  analogies  of  the  law  are  in  favor  of 
their  regarding  this  as  an  evidentiary  fact.     All  the  acts  of  a 


WITNESSES.  261 

have  in  the  event  of  it.  (/-)  Consequently,  when  it 
appeared  that  they  had  none,  or  that  any  which  they 
ever  had,  had   been  removed,  their  evidenee   was  re- 

(k)  Gilb.   F.v.    130,  4th  ed.  ;  Ph.   &      Bingh.  395;  Pipe  v.  Steel,    2    Q.  B. 
Am.    Ev.    .47;     Worrall    &    Jones,    7       733. 

party  accused,  whatever  explains  or  throws  light  upon  those  acts, 
all  the  acts  of  others,  relative  to  the  crime  charged,  that  come 
to  his  knowledge,  and  which  may  influence  him;  his  loves 
and  his  hates,  his  promises,  his  threats,  the  truth  of  his  dis- 
covery, the  falsehood  of  his  apologies,  pretenses,  and  explana- 
tions; his  looks,  his  speech,  his  silence  when  called  upon  to 
speak  ;  everything  which  tends  to  establish  the  connection 
between  the  accused  and  the  crime  with  which  he  is  charged; 
every  circumstance  preceding,  accompanying,  or  following, 
may  become  articles  of  circumstantial  evidence  of  no  slight 
importance.  A  statement  is  made  either  to  a  man,  or  within 
his  hearing,  that  he  was  concerned  in  the  commission  of  a 
crime,  to  which  lie  returns  no  reply — the  natural  inference  is, 
that  the  imputation  is  well  founded,  or  he  would  have  repelled 
it.  'Silence  is  tantamount  to  confession'  (Best  on  Presump- 
tions^ Jill.  Extrajudicial  non-responsion,  when  a  charge 
is  made,  is  always  regarded  as  an  article  of  circumstantial 
evidence,  the  probative  effect  of  which  may  be  weakened  by 
various  affirmative  .considerations  which  it  is  not  now  neces- 
sary to  discuss,  but  which  are  to  be  considered  and  weighed 
by  the  jury. 

"  When    the    prisoner   is  on  I  rial,  ;i  nd    the   evidence  offered 

by  the  government  tends  to  establish  his  guilt,  and  he  declines 

to  COntradi*  t  or  explain  the  inculpatory  facts  whi<  h  have  been 
proved  againsl  him,  is  not  thai  ;i  facl  ominous  ol  criminality ' 
I     his  silence  of  any  the  le  s  probative  force,  when  thus  m 
urt  called  upon  to  contradict  or  ex  phi  in  by  th<-  pressure  ol 
criminative  facts,  fully  proved,  than  his  extrajudicial   silenci 
when  ,-i   charge    is  made  to   him,  or  in   hi     pri    ence?     The 
silence  ol  the  accused,  the  omi    lion  to  explain  or  contradict 
when  the  evidence  tends  to  establish  guilt,  is  a  facl   the  pro- 
bative eflfe<  '  ot  which  may  vary  according  to  the  varying  con- 
dition -  oi  the  different  trial  •  in  which  it  ma)  o<  i  ui  ;  whi<  h  the 
jury  must   perceive,  and  which   perceiving,  they  can  no  more 
disregard  than  one  can  the  light  ol  the  sun  when  shining  with 
lull  blaze  on  the  open  eye.     li  has  been  urged  that  this  view 
ot  law  places  the  prisonei  in  an  embarrassed  condition.     Not 
so.    The  embarrassment  of  tlw  prisoner,  it  embarra    ed,  it  the 


262  INSTRUMENTS    OF    EVIDENCE. 

ceivablc  :  as,  for  instance,  where  one  of  several  defend- 
ants suffered  judgment  by  default;  or  had  a  nolle 
prosequi  entered  against  him,  under  circumstances 
winch  rendered  him  indifferent  to  the  result  of  the 
contesl  between  his  companions  and  the  plaintiff,  &c. 
So  if,  in  the  course  of  the  trial.it  appeared  to  the  court 
that  there  was  no  evidence  against  some  or  one  of 
several  defendants,  it  would,  in  its  discretion,  direct  a 
verdict  to  be  taken  for  him  or  them,  before  the  others 
were  called  on  for  their  defense;  (/)  because,  other- 
wise, a  prosecutor  or  plaintiff  might  in  many  cases 
have  obtained  an  unjust  verdict,  merely  by  making 
defendants  of  all  the  witnesses  who  could  give  evi- 
dence in  favor  of  that  defendant  who  was  his  real  ad- 
versary, (vi)  And  a  like  practice  was  followed,  where 
the  evidence  of  a  person  whose  name  appeared  on  the 
record  as  defendant,  was  required  by  the  plaintiff  or 
the  crown,  (it) 

{/}  Creswick's  Case,  Clayt.  37,  pi.  («)  It  appears  that,  where  two  pris- 

04;   Anon.,  1    Mod.  n,  pi.  34;  White  oners   are    indicted    together,   but  are 

v.    Hill,    6    Q.    B.    4-7  ;  Wakeman    ?'.  not  given   in  charge  to  the  same  jury, 

Lind-ev,  14    Q.    B.  625  ;  and    the   au-  the   one     is    admissible    as    a    witness 

thorities  m  the  next  note.  against  the  other,  although  no  verdict 

(in)   12  ,vss.  pi.  11  &  T2  ;  Dymoke's  has    been    taken   either  for  or  against 

5av.     34,     pi.    Si  ;     Neilau    v.  the  former.      But  the  belter  course  is, 

Hanny,  2  C«..  £  K.  710.  before  admitting  the  prisoner  to  give 

result  of  Ins  own  previous  misconduct,  not  of  the  law.  If  in- 
nocent, he  will  regard  the  privilege  of  testifying-  as  a  boon 
justly  conceded.  If  guilty,  it  is  optional  with  the  accused  to 
testify  or  not,  and  he  cannot  complain  of  the  election  he  may 
make.  If  he  Ques  not  avail  himself  of  the  privilege  of  con- 
tradiction or  explanation,  it  is  his  fault,  if  by  his  own  miscon- 
duct or  crime  he  nas  placed  himself  in  such  a  situation  that  he 
any  inferences  which  may  be  drawn  from  his  refusal 
to  testify,  to  those  which  must  be  drawn  from  testimony,  if 
truly  delivered. 

"  The  instruction  given  was  correct,  and  in  entire  accordance 
with  the  conclusions  to  which,  after  mature  deliberation,  we 
have  arrived."  A  no.  .see  State  v.  Bartlett,  55  Me.  200 ;  State 
v.  Lawrence,  57  Id.  5-y », 


WITNESSES.  263 

169.  There  were  several  common-law  exceptions 
to  this  part  of  the  rule  in  question.  The  first  which 
we  shall  notice  was  perhaps  more  apparent  than  real, 
viz.  that  the  prosecutor  of  an  indictment  or  informa- 
tion is  in  general  a  competent  witness  against  the 
accused.  (/)  The  reason  of  this  is,  that  in  contempla- 
tion of  law  the  suit  is  the  suit  of  the  crown,  instituted 
not  to  redress  the  injury  done  to  the  person  by  whom 
the  law  is  set  in  motion,  but  to  punish  the  offender 
for  disturbing  the  peace  of  the  sovereign  and  the  good 
order  of  society.  And  hence  the  appellor  in  an  appeal 
of  felony,  while  that  mode  of  proceeding  was  in  use, 
was  not  a  competent  witness  against  the  appellee ; 
for  the  suit  was  his  own.  (</)  The  prosecutor  of  an 
indictment,  &c. has  not  in  general  any  direct  pecuniary 
interest  in  the  result;  for  although  under  certain 
Statutes  he  may  be  awarded  his  costs,  yet  this  is  dis- 
cretionary with  the  judge,  and  docs  not  How  as  a 
necessary  consequence  from  a  verdict  of  conviction. 
"  I Uit,"  as  is  observed  in  a  text  book  published  before 
the  passing  of  the  6  &  7  Vict.  c.  85,  (/-)  "although  in 
general,  a  prosecutor  or  party  aggrieved  has  no  in- 
terest in  the  event  of  a  prosecution,  and  is  therefore  a 
competenl  witness,  there  are  several  classes  of  cases 
in  which,  by  virtue  of  some  legislative  enactment,  he 
is  entitled  to  a  particular  benefil  or  advantage,  upon 
obtaining  a  conviction  of  the  party  act  used.  In  these 
cases,  wh<  re  the  benefit  or  advantage  will  immediately 
u It  to  the  witness  on  a  conviction  being  obtained, 
the  witn  s  will  be  intere  t<  d,  and  he  will  be  incompe- 
tent, unli    ;  the  general  rule  ol  law  be  dispensed  with 

(  un 
"not    guiltj  a    !■  ite  pur  1''  my."     Staundf 

■  nee  up'. n  him.      1'.  C  lib  ^  a. 

v.   R.  (i  ,  6    U.  >'-.  -'-ia. 

143.  [r)   l'li.  &  Am.  I 


264  INSTRUMENTS    OF    EVIDENCE. 

in  the  particular  case,  either  by  some  legislative  enact 
merit,  or  some  principle  of  public  policy  requiring  that 
his  evidence  shall  be  received."  The  most  important 
instance  of  this  latter  exception,  is  in  the  case  of  pro- 
secutions for  robbery  or  theft;  where  the  party  injured 
was  competent,  notwithstanding  he  became  entitled 
to  a  restitution  of  his  property,  immediately  upon  ob- 
taining- a  conviction  of  the  offender,  (s) 

170.  A  striking  exception  to  the  common-law 
rule,  which  excluded  the  evidence  of  parties  interested 
in  the  event  of  a  suit,  or  question  at  issue,  is  to  be 
found  in  the  old  system  of  allowing  persons  indicted 
for  treason  or  felony  to  become  approvers,  which  has 
been  replaced  by  the  modern  practice  of  receiving  the 
evidence  of  accomplices — the  "socii  vel  auxiliatores 
criminis  "  of  the  civilians.  The  necessity  for  admitting 
this  kind  of  evidence  has  been  recognized  by  the  laws 
of  all  countries,  and  the  practice  is  of  extreme  antiquity 
in  our  own.  (/)  The  reasons  for  it  were  thus  explained 
by  a  very  able  judge,  on  an  important  occasion  :  (u) 
"  If  it  should  ever  be  laid  down  as  a  practical  rule  in 
the  administration  of  justice,  that  the  testimony  of 
accomplices  should  be  rejected  as  incredible,  the  most 
mischievous  consequences  must  necessarily  ensue ;  be- 
cause it  must  not  only  happen  that  many  heinous 
crimes  and  offenses  will  pass  unpunished,  but  great 
encouragement  will  be  given  to  bad  men,  by  with- 
drawing from  their  minds  the  fear  of  detection  and 
punishment  through  the  instrumentality  of  their 'part- 
ners in  guilt,  and  thereby  universal  confidence  will  be 
substituted    for   that    distrust    of    each    other    which 

(s)  Ph.  &  Am.  Ev.  67.  (u)  L.    C.   Abbott's    Charge    to   the 

(t )  Approvers  are  mentioned  in  the  Grand  Jury  on  the  Special   Coir.mis- 

an  cient  treatise  entitled  "Dialogus  de  sion,  in    March,  1820;   33  Ho.  St   Tr. 

Scaccario, '  p.  426.     See  also  12   Edw.  63q. 

IV.  I0B.pl. 26; 2  lieu.  VII.  3  A.  pi.  8. 


WITNESSES.  265 

r.aturaily  possesses  men  engaged  in  wicked  purposes 
and  which  operates  as  one  of  the  most  effectual  re- 
s' aints  against  the  commission  of  those  crimes  to 
which  the  concurrence  of  several  persons  is  required. 
No  such  rule  is  laid  down  by  the  law  of  England  or 
of  any  other  country."  At  first  sight  it  might  seem 
that,  pievious  to  the  6  &  7  Vict.  c.  85,  the  objection  to 
che  testimony  of  such  persons  would  have  been  prop- 
erly ranged  under  infamy  of  character:  but  as  objec- 
tions of  that  nature  could  only  be  supported  by  proof 
of  a  convinction  for  an  offense,  and  judgment  of  the 
court  thereon,  (.v)  it  followed  that  a  confession  by  a 
witness  of  any  conduct,  however  infamous,  only  went 
to  his  credit ;  so  that  the  true  ground  of  objection  to 
the  evidence  of  approvers  or  accomplices,  arises  from 
the  obvious  interest  which  they  have,  to  save  them- 
selves horn  punishment  by  the  conviction  of  (he  ac- 
cused against  whom  they  appear.  The  old  law  of 
approvement,  and  the  modern  practice  of  admitting 
the  evidence  of  accomplices,  are  thus  fully  and  clearly 
stated  by  Lord  Mansfield  in  R.  v.  Rudd.  (y)  "The 
law  of  approvement,  in  analog)'  to  which  this  other 
practice"  ( /.  e,  of  receiving  tin-  evidence  of  accom- 
plices), " has  been  adopted  and  so  modelled  as  to  be 
received  with  more  latitude,  is  still  in  force,  and  is 
very  material.  A  person  desiring  t<»  bean  approver, 
must  be  one  indietrd  <>f  the  offensi !,  and  in  eustodvou 
that  indictment  :  he  musl  confess  himself  guilty  of  the 
offense,  and  desire  to  accuse  his  accomplices;  he  must 
likewise  upon  oath  discover,  not  only  the  particular 
offense  for  which  he  i  indicted,  bul  all  t  reai  ons  and 
felonies  which  he  knows  of;  and  after  all  this,  it 
is  in  the    di  cretion  of  the  court,  whether  they   will 

(x)  Supra,  \  142.  (v)  Cowp.  mi,  335 


266  INSTRUMENTS    OF    EVIDENCE. 

assign  him  a  coroner,  and  admit  him  to  be  an  approver 

or  not  :  for  if,  on  his  confession,  it  appears  that  he 
is  a  principal  and  tempted  the  others,  the  court 
may  refuse  and  reject  him  as  an  approver.  When 
he  is  admitted  as  such,  it  must  appear  that  what 
he  has  discovered  is  true ;  and  that  he  has  dis- 
covered the  whole  truth.  For  this  purpose  the 
coroner  puts  his  appeal  into  form;  and  when  the 
prisoner  returns  into  court,  he  must  repeat  his  ap- 
peal, without  any  help  from  the  court,  or  from  any  by- 
stander. And  the  law  is  so  nice,  that  if  he  vary  in  a 
single  circumstance,  the  whole  falls  to  the  ground, 
and  he  is  condemned  to  be  hanged  ;  if  he  fail  in  the 
color  of  a  horse,  or  in  circumstances  of  time,  so 
rigorous  is  the  law,  that  he  is  condemned  to  be 
hanged  •  much  more,  if  he  fail  in  essentials.  The 
same  consequences  follow  if  he  does  not  discover  the 
whole  truth  ;  and  in  all  these  cases  the  approver  is 
convicted  on  his  own  confession.  See  this  doctrine 
more  at  large  in  Hale's  Pleas  of  the  crown,  vol.  2,  p. 
226  to  236  ;  Staund.  PI.  Crown,  lib.  2,  c.  52  to  c.  58  ; 
3  Inst.  129. — A  further  rigorous  circumstance  is,  that 
it  is  necessary  to  the  approver's  own  safety,  that  the 
jury  should  believe  him  ;  for  if  the  partners  in  his 
crime  are  not  convicted,  the  approver  himself  is  ex- 
ecuted. Great  inconvenience  arose  out  of  this  prac- 
tice of  approvement.  No  doubt,  if  it  was  not  abso- 
lutely necessary  for  the  execution  of  the  law  against 
notorious  offenders,  that  accomplices  should  be  re- 
ceived ;is  witnesses,  the  practice  is  liable  to  many 
u  j  tions.  And  though  under  this  practice  they  are 
clearly  competent  witnesses,  their  single  testimony 
alone  is  seldom  of  sufficient  weight  with  the  jury  to 
convict  the  offenders  ;  it  being  so  strong  a  temptation 
to  a  man   to   commit   perjury,  if  by  accusing    another 


ir/TXESSES.  267 

he  can  escape  himself.1  Let  us  see  what  has  come  in 
the  room  of  this  practice  of  approvement.  A  kind 
of  hope,  that  accomplices  who  behave  fairly  and  dis- 
close the  whole  truth,  and  bring  others  to  justice, 
should  themselves  escape  punishment  and  be  par- 
doned. This  is  in  the  nature  of  a  recommendation 
to  mercy.  .  .  .  The  accomplice  is  not  assured  of 
his  pardon  ;  but  gives  his  evidence  in  vinculis,  in 
custody ;  and  it  depends  on  the  title  he  has  from 
his  behavior,  whether  he  shall  be  pardoned  or  ex- 
ecuted." 

171.  But  although  in  strictness  a  jury  may  legally 
xcept  where  two  witnesses  are  required  by  law) 
convict  on  the  unsupported  evidence  of  an  accom- 
plice or  socius  criminis;  (V)  yet  it  is  a  rule  of  general 
and  usual,  practice, — now  so  generally  followed  as  al- 
most to  have  the  force  of  law—  for  the  judge  to  advise 
the  jury,  not  to  convict  on  the  evidence  of  an  accom- 
plice alone,  (a)  It  is  not,  however,  every  participa- 
tion in  a  crime,  which  will  render  a  party  an  accom- 
plice in  it,  so  as  to  require  his  evidence  to  be  con- 
firmed; (&)    and    the    nature  of  the   confirmation    in 

(z)   Sec    the    authoi                     ted  Per  Wightman,  J.,  R.  v.  Boyes, 

tupra,  i  139,                    For  the  prac-  1  !'•■  &  S.  311, 

,  ^ce  (b)  R.  v.  Hargrave,  5  <     r.  &  P.  170; 

M  1     ird,  de  Prob,  •  !oncl.  1  '            2  Moo, 

1  The  general  rule  in  reference  to  the  testimony  of  accom- 
pli' to  advise  the  jury  nol  to  <  onvii  1.  unle  s  the  testi- 
mony is  '1"  trated.     But  this  is  only  a  ruli  ractice  and 

not  a  rule  of  law.  The  jury  are  the  final  judges  of  the  1  redibility 
of  the  witne    ,and  it  1  -  not  erroi  foi  a  judge  to  refu  e  to<  h  11 
a  jury  that   they  should   refuse   to  convict  without    corroboi  - 
tion.     Stale  v.   Potti  Vt.    1.95 ;  but    see   United   State    \ 

Harrii       :  Bond,  311.,  which  holds    lomewhat  differently  as  to 
the  duty  ol  a  jury.     Al  0  I  nited  States  v.  Smith,  2  Bond,  , 
Id.  v.  one   Distillery,  Id.   399;   Pai  ons  v.  State,  r,  Ga.    197; 
Lee  v.  State,  21  Ohio  St.  15 '  '-  State  v.  Litchfii  Id,        Me.  207 ; 
People  v.  M'elvaine,  39  <  al.  61  \  ;   People  \ .  A.me  ,  l<l     ,    , 


268  INSTRUMENTS    OF    EVIDENCE. 

each  case-,  must  of  course  depend  very  considerably 
on  its  peculiar  circumstances.  But  a  few  general 
principles  may  be  staled.  First,  then,  it  is  not  neces- 
sary  that  the  story  told  '  by  the  accomplice,  should  be 
corroborated  in  every  circumstance  he  details  in  evi- 
dence  ;  for,  if  this  were  so,  the  calling  him  as  a 
witness  might  be  dispensed  with  altogether.  (V) 
Again,  notwithstanding  some  old  cases  to  the  contrary, 
it  seems  now  settled  that  the  corroboration  should 
not  be  merely  as  to  the  corpus  delicti,  but  should 
go  to  some  circumstances  affecting  the  identity  of  the 
accused  as  participating  in  the  transaction,  (d)  "A 
man,"  says  Lord  Abinger,  "  who  has  been  guilty  of  a 
crime  himself,  will  always  be  able  to  relate  the  facts 
of  the  case  ;  and  if  the  confirmation  be  only  on  the 
truth  of  that  history,  without  identifying  the  persons, 
that  is  really  no  corroboration  at  all."  (c)  It  is 
thought  that  confirmatory  evidence  by  the  wife  of  an 
accomplice  will  not  suffice,  for  they  must  for  this 
purpose  be  considered  as  one  person.  (/")  Neither 
ought  the  jury  to  be  satisfied,  merely  with  the 
e vide nee  of  several  accomplices  who  corroborate  each 
other,  (cr) 

172.  When  an  issue  was  directed  from  the  Court 
of  Chancery,  to  be  tried  in  a  court  of  law,  it  was 
frequently  made  part  of  the  order,  that  the  plaintiff  or 
defendant  should  be  examined  as  a  witness. 

So  when  a  cause  was  referred  to  arbitration  from 
a  court  of  law,  it  was  usually  part  of  the  rule,  that 

(0  31  I'"-  Similar   language  was  used  by  Parke, 

id)   k.  -  8C  &P.   ro6;   R.  B.,    in    R.   v.  Parker,    Kent,  Sp.  As<. 

v.  Ad<li-,  P.  388;  R.  v.  Webb,  1851,  MS. 

Id-  59S  i   >'  '■'•  ■        .  7C.  &  1'.  272;  (/)  R.  v.    Neal,    7   C.   &   P.    16&. 

R.  v.  Moores.  Id.  270;    R.  v.  Dyke,  {g)  31    Ho.   St    Tr.  1122-3;  R.  v. 

8  C.  &  P.  261  ;  k.  v.  Stubbs,  1  Dearsl.  Noakes,  5  C.  &  P.  326  ;  R.  v.  MagiH. 

C  C.  555.  Ir.  Lire.  Rep.  418. 
(e)  R.    v.    Farler,   S    C.  &    P.    10S. 


WITNESSES.  269 

the  arbitrator  should  be  at    liberty  to    examine    the 
parties. 

173.  The  first  general  statutory  exception  to  the 
rule  against  admitting  parties  to  the  suit  as  witnesses, 
was  contained  in  the  9  &  10  Vict.  c.  95.  That  statute, 
after  remodelling  the  County  Courts,  and  extending 
their  jurisdiction,  enacts  in  its  83rd  section,  that  "  On 
the  hearing  or  trial  of  any  action,  or  on  any  other 
proceeding  under  this  act,  the  parties  thereto,  their 
wives,  and  all  other  persons,  may  be  examined,  either 
on  behalf  of  the  plaintiff  or  defendant,  upon  oath, 
or  solemn  affirmation  in  those*cascs  in  which  persons 
are  by  law  allowed  to  make  affirmation  instead  of 
taking  an  oath  to  be  administered  by  the  proper 
officer  of  the  court."  But  this  must  not  be  looked  on 
ns  an  innovation  introduced  for  the  first  time;  for 
the  old  Courts  of  Conscience  and  Courts  of  Requests 
acts  contained  similar  provisions. 

174.  Several  other  exceptions,  to  the  rule  exclud- 
ing the  evidence  of  parlies  to  a  suit  or  proceeding, 
were  introduced  by  modern  statutes,  until  the  term, 
"  Incompetency  of  Parties"  was  almost  abolished  by 
the  i.}  &  15  Viet.  c.  99.  That  statute,  after  in  its  first 
section  repealing  the  proviso  in  the  first  section  of 
the  6  &  7  Vict.  c.  85,  which  retained  the  exclusion  of 
(he  evid(  nee  of  such  parties,  enacted  as  follows: 

Sect.  2.  "On  the  trial  of  any  issue  joined,  or  of 
an)-  matter  or  question,  or  on  any  inquiry  arising  in 
any  suit,  action,  or  other  proceeding  in  any  court  el' 
justice,  or  before  anj  person  having  by  law,  or  b) 
nsent  of  parties,  authority  to  hear,  receive,  and  ex- 
amine evidence,  the  parties  thereto,  and  the  persons 
in  whose  behalf  an)  such  nit,  action,  or  othei  pro 
ceeding  may  be  broughl  or  defended,  shall,  except 
as   hereinafter  excepted,  lie   competenl    and   compel 


2;o  INSTRUMENTS    OF    EVIDENCE. 

lable  to  give  evidence,  cither  viva  voce  or  by  deposi- 
sition,  according  to  the  practice  of  the  court,  on  be- 
half of  either  or  any  of  the  parties  to  the  said  suit, 
action,  or  other  proceeding." 

Sect.  3.  "  But  nothing-  herein  contained  shall  render 
any  person  who  in  any  criminal  proceeding  is  charged 
with  the  commission  of  any  indictable  offense,  or  any 
offense  punishable  on  summary  conviction,  competent 
or  compellable  to  give  evidence  for  or  against  himself 
or  herself,  or  shall  render  any  person  compellable  to 
answer  any  question  tending  to  criminate  himself  or 
herself,  &c." 

Sect.  4.  "  Nothing  herein  contained  shall  apply  to 
any  action,  suit,  proceeding,  or  bill  in  any  court  of 
common  law,  or  in  any  ecclesiastical  court,  or  in 
cither  house  of  parliament,  instituted  in  consequence 
of  adultery ;  or  to  any  action  for  breach  of  promise 
of  marriage."  (Jt) 

The  5th  sect,  provided  that  nothing  in  the  act  con- 
tained should  repeal  any  provision  in  the  Wills  Act,  7 
Will.  4  &  1  Vict.  c.  36. 

175.  The  other  persons  affected  by  this  rule  of  ex- 
clusion, were  the  husbands  and  wives  of  the  parties  to 
the  suit  or  proceeding.  Husband  and  wife,  say  our 
books,  "  sunt  duae  animoe  in  carne  una" ;  (z)  they  "  arc 
considered  as  one  and  the  same  person  in  law,  and  to 
have  the  same  affections  and  interests;  from  whence 
it  has  been  established  as  a  general  rule,  that  the  hus- 
band cannot  be  a  witness  for  or  against  the  wife,  nor 
the  wife  be  a  witness  for  or  against  the  husband,  by 
reason  of  the  implacable  dissension  which  might  be 
caused  by  it,  and  the  great  danger  of  perjury  from 
taking  the  oaths  of  persons  under  so  great  a  bias,  and 

(h)  Repealed    by   the   32  &  33  Vict.  (?')  Co.    Litt.    6  b.       See    also    Litl. 

C.  68,  s.  1.     See  infra,  -i  sect.  291 ;  Co.  Litt.  112  a,  and  123  a 


WITNESSES.  271 

the  extreme  hardship  of  the  case."  (£)  This  rule  was 
not  limited  to  protecting  from  disclosure,  matters 
communicated  in  nuptial  confidence,  or  facts  the 
knowledge  of  which  had  been  acquired  in  conse- 
quence of  the  relation  of  husband  and  wife  ;  but  was 
an  absolute  prohibition  of  the  testimony  of  the  wit- 
ness to  any  facts  affecting  the  husband  or  wife,  as  the 
case  might  be,  however  the  knowledge  of  those  facts 
might  have  been  acquired.  But  the  rule  only  applied, 
where  the  husband  or  wife  was  party  to  the  suit  or 
proceeding,  in  which  the  other  was  called  as  a  witness, 
and  did  not  extend  to  collateral  proceedings  between 
third  parties.  In  such  cases,  husband  and  wife  might 
be  examined  as  witnesses,  although  the  testimony  of 
the  one  tended  to  confirm  or  contradict  that  of  the 
other.  (/)  And  the  declarations  of  a  wife,  acting  as  the 
lawfully  constituted  agent  of  her  husband,  were  ad- 
nissible  against  him,  like  the  declarations  of  any  other 
/awfully  constituted  agent,  (m) 

176.  To  this  branch  also  common-law  exceptions 
are  not  wanting.  Where  one  of  the  married  parties 
used  or  threatened  personal  violence  to  the  other,  the 
law  wi  aid  not  allow  the  supposed  unity  of  person  in 
husband  and  wife,  to  supersede  the  more  important 
principle,  thai  the  state  is  bound  to  proteel  flic  lives 
and  limbs  of  its  citizens,  (n)  Thus,  on  an  indictment 
against  i  man  for  assault  and  battery  of  his  wife,  01 
vice  versi,  the  injured  party  is  a  competenl  witness; 
(0)  and  In;  band  and  wife  may  swear  the  peace  against 

fk)  Bac,   .'.'      I  .  A.  1.     See  (m)  i  Phill.    Ev.    78   el     eq.,    [Otta 

also  2  II           P.  (          ;-  .    ect.  16 ;  ed. 

Davis   v.    Dinwo  ly,   .;    T.    I  (»)  2  Hawk.    P.    C.   c.  46,   b.   t6 ; 

N  'A .  Peak*  1                           ;  1  East,  P. 

45  ;  '  "  les,  4  M.  &  C  455;  B.  N     P.  287 ;   1  Phill.  Er. 

Gr.435  ;  I  '          '     ,  Bo,  10th  ed. 

(/)  1  l  ed.;  1  iyl.  B.  X.  P.  287  ,   k.  v.  A/ire,  1  Str. 

Kv.  1335    4-tli  ed.  633. 


INSTRUMENTS    OF    EVIDENCE. 

each  other.  ( />V  So  a  husband  may  be  principal  in 
the  second  degree  to  a  rape  on  his  wife,  and  she  is  a 
competent  witness  against  him  ;  ((/)  but  principal  in 
the  fust  degree  he  cannot  be,  for  obvious  reasons,  (r) 
So  if  a  husband  commits  an  unnatural  offense  with  his 
wife,  she  is  a  competent  witness  against  him.  (s)  The 
case  of  abduction  also  falls  within  this  exception.  On 
indictments  under  the  repealed  stat.  3  lien.  7,  c.  2,  for 
forcibly  taking  away  a  woman,  the  female,  though 
married  to  the  offending  party,  was  a  competent  wit- 
ness against  him  ;  the  reasons  assigned  for  which  by 
Mr.  Justice  Blackstone  (7)  are,  that  "in  this  case  she 
can  with  no  propriety  be  reckoned  his  wife,  because  a 
main  ingredient,  her  consent,  was  wanting  to  the  con- 
tract ;  and  also  there  is  another  maxim  of  law,  that  no 
man  shall  take  advantage  of  his  own  wrong,  which 
the  ravisher  here  would  do,  if  by  forcibly  marrying  a 
woman  he  could  prevent  her  from  being  a  witness, 
who  is  perhaps  the  only  Vvitness,  to  that  very  fact." 
This  statute  was  replaced  by  the  9  Geo.  4,  c.  31,  s.  19, 
which  was  in  its  turn  repealed  by  24  cSl  25  Vict.  c.  95  ; 
and  its  provisions  were  re-enacted,  with  a  few  altera- 
tions, by  240!  25  Vict.  c.  100, — sect.  53  of  which  is  as 
follows  :  "  Where  any  woman  of  any  age  shall  have 
any  interest,  whether  legal  or  equitable,  present  or 
future,  absolute,  conditional,  or  contingent,  in  any  real 
or  personal  estate,  or  shall  be  a  presumptive  heiress  or 
coheiress,  or  presumptive  next  of  kin,  or  one  of  the 
presumptive    next    of  kin,  to    any    one  having  such 

,  T2   Mod.  414  ;   I'..  N.  P.  (r)   i  Hale,  I'.  C.  629. 

(s)  R.  v.  Jellyman,  8  C.  &  P.  604. 
(tj)   1    i  3o,    i'/']]    ed. ;    2  (t)   1     Blackst.    Comm.    443.      See 

Hawk.  P.  C.  c.  46,  s.  16  ;  Lord  Aud-  Swendsen's  Case,  14  Ho.  St.  Tr.  559, 
ley's  Case,  3  Ho.  5t.  Tr.  402,  413;  575;  and  per  Abbott,  C.  J.,  in  R.  v. 
Hut'..  U5,  n6.  Serjeant,  Ry.  &  Mo.  352. 

1  Sec  cases  cited  ante,  note  1,  p.  188. 


WITNESSES.  273 

interest,  whoever  shall,  from  motives  of  lucre,  take 
away  or  detain  such  woman  against  her  will,  with  in- 
tent to  many  or  carnally  know  her,  or  to  cause  her  to 
be  married  or  carnally  known  by  any  other  person  ; 
and  whosoever  shall  fraudulently  allure,  take  away,  or 
detain  such  woman,  being  under  the  age  of  twenty- 
one  years,  out  of  the  possession  and  against  the  wdll 
of  her  father  or  mother,  or  of  any  other  person  having 
the  lawful  care  or  charge  of  her,  with  intent  to  marry 
or  carnally  know  her,  or  to  cause  her  to  be  married  or 
carnally  known  by  any  other  person,  shall  be  guilty 
of  felony,  &c."  And  by  sect.  54,  "  whosoever  shall, 
by  forcertake  away  or  detain  against  her  will  any 
woman  of  any  age,  with  intent  to  marry  or  carnally 
know  her,  or  to  cause  her  to  be  married  or  carnally 
known  by  any  other  person,  shall  be  guilty  of 
felony,  &c."  The  female  so  taken  away  is  a  compe- 
tent witness  on  an  indictment  under  these  statutes; 
and  it  is  said  that  she  is  so,  notwithstanding  hcrsubsc- 
quent  assent  to  the  marriage,  aud  voluntary  cohabita- 
tion, (i/) 

177.  The  case  of  bigamy  presents  some  difficulty. 
The  (ir&t  wife  or  husband,  as  the  case  may  be,  is  not  a 
competent  witness  against  the  accused;  butour  books 
-  that  th<  iid  wile  or  husband   is,  after  proof  of 

the  first  marriage;  for  that  then  the  second  marriage 
1  a  nullity ;  (a  (and  tin:  practice  is  in  accordance 
with  th         llif  truth,  however,  seems  i<>   be,  that  the 

nid  wile  ought   to  be  reci  ived  in  these  cases  as  a 
wii n  .'hi  1  i in-  a<  cu  ed,  .n    any  stage  of  the  trial, 

on  th<  ame  grounds  which  render  the  testimony  of 
the  wife  receivable  on  indictments  lor  abduction, 
under  1  Ik-  3    I  [en.  7,  c.  2,  9  <  ■■•  >.  \,  c.  3  1 ,  and   24  &  25 

(«)  1  ]  roth  ed.  ;  Tayl.  i  <  Taj  I.    Evid   .'     1  ■  -,  i     5U1    ed. ; 

5th  ed.  1 E.v.  r42,  4th  1  d. 

18 


274  INSTRUMENTS    OF    EVIDENCE. 

Vict  c  ioo.  {y)  It  is  an  established  principle  that  a 
woman  is  a  competent  witness  against  any  one,  even 
her  lawful  husband,  who  has  done  unauthorized 
violence,  actual  or  constructive,  to  her  person;  and, 
besides,  on  a  trial  for  bigamy,  the  objection  to  the 
competency  of  the  injured  female,  on  the  ground  that 
she  is  the  wife  of  the  accused,  is  a  petitio  principii. 
For,  whether  she  is  his  lawful  wife,  or  whether  he  has 
violated  the  law  by  pretending  to  make  her  such,  is 
the  very  point  at  issue.  How  strange,  then,  does  it 
seem  that  where,  by  a  combination  of  falsehood,  fraud, 
and  sacrilege,  a  man  obtains  possession  of  a  woman's 
person,  property,  and  perhaps  affection,  her  mouth  is 
to  be  stopped  against  him  because  she  is  colorably 
his  wife.  This  latter  reasoning  of  course  docs  not  so 
strongly  apply  to  rendering  the  second  husband  com- 
petent on  a  charge  of  bigamy  brought  against  a 
female  ;  but  the  first  does,  viz.,  tnat  lawful  marriage  or 
wrongful  marriage,  in  violation  of  the  peace  of  the 
Queen,  is  a  direct  point  in  issue.1 

178.  What  is  the  rule  on  this  subject  in  cases  of 
high  treason,  is  a  disputed  point.  Many  eminent 
authorities  lay  down,  that  in  such  cases  the  testimony 
of  married  persons  is  receivable  against  each  other,  (z) 
on  the  ground  of  the  great  heinousness  of  the  crime  ; 
and  that  the  ties  of  allegiance  to  the  sovereign,  and 
the  obligation  of  upholding  social  order  are  more 
binding  than  those  arising  out  of  the  relation  of 
husband  and  wife,  and  must  in  the  eye  of  the  law  be 
msidered  paramount  .to  any  other  obligations  what- 
ever.   To  this  it  may  be  added,  that  although  marriage 

(y)  Supra,  Car.  II.,  T.  Raym.  1.     To   the  same 

(z)  So   said  (not   decided,    for    that  effect  arc  Gilb.  Ev.  133,  4th  ed.  ;  B.  N 

not  the  point  in  question)  by  the  P.  2S6  ;  2  Ev.  I'oth.  311. 
court,   in    Mary   Grigy's   Case,   M.   12 


WITNESSES.  275 

is  an  institution  of  natural  law,  and  as  such  antecedent 
to  all  forms  of  government,  and  even  to  the  organiza- 
tion of  civil  society,  (a)  the  complete  unity  of  person 
between  husband  and  wife  is  a  fiction,  which  the  law 
disregards  in  cases  where  the  ends  of  justice  require  it. 
(J?)  There  is,  however,  high  authority  the  other  way  ; 
(c)  and  most  of  the  modern  text  writers  seem  dis- 
posed to  consider  the  evidence  not  receivable,  (d) 
They  argue  that,  as  a  woman  is  not  bound  to  discover 
her  husband's  treason,  (e)  by  parity  of  reasoning  she 
cannot  be  a  witness  against  him  to  prove  it.  But  to 
this  it  may  be  answered,  that  one  reason  why  the  wife 
is  not  held  responsible  in  such  a  case  is,  that  she  owes 
her  husband  a  kind  of  allegiance,  and  may  be  supposed 
to  be  acting:  under  his  coercion — we  are  not  aware 
that  a  husband  would  be  excused  from  the  guilt  of 
misprision  in  concealing  the  treason  of  his  wife. 
Under  the  old  feudal  law  in  this  country,  when  the 
vassal  took  the  oath  of  fealty  to  his  lord,  it  was  with 
the  express  saving  of  the  faith  which  he  owed  to  the 
king  his  sovereign  lord  ;  (/")  probably  on  the  prin- 
ciple stated  by  Lord  Chief  Baron  Gilbert,  that  oui 
"allegiance  is  founded  on  the  benefit  of  our  protec- 
tion, which  is  to  lake  place  of  our  civil  interests  that 
relate  onlytowel]  being."  (^)  Bui  the  question  is 
an  embarrassing  one,  on  which  the  reader  must  form 
his  own  judgm<  nt. 

179.  Tin-  statutory  exceptions  to  this  rule  are 
now  extremely  numerous.  So  earl)  as  the  21  Jac.  i, 
e.  [9,  s.  6,  the  commissioners  of  bankruptcy  were  ein- 

if<  ndorf,  De  Jure  Nal  7-.  loth  ed.  ;  i  Greei                  |   ,  7'1> 

nt».  (,,  cap    t.  ;  Tayl.  Ev.  §  1237,  3th 

.-.-    ■      '  176,  177.  (<■)  km  m.,  P.  i"  [ai  .1.1    Brown] 

i    Hale,   P.   C.     101.      See    <'  •>      47 ;  Trials  pei    Pais,  371.     See,  how 

48.  ever,  1  11  ile,  P.  C.  r. 

(d)  I'll.  &  Am.  I  v.  1'  1  :   1    I'll.  I  (/)   I. nt.  sects.  85-89. 

(j)  (.ill..  Ev.  134,  4th  ed. 


276  INSTRUMENTS    OF    EVIDENCE. 

powered  to  examine  upon  oath  the  wife  of  any  bank- 
rupt, for  the  purpose  of  finding  out  and  discovery  of 
the  estates,  goods,  and  chattels  of  the  bankrupt  con- 
c<  aled,  kept,  or  disposed  of  by  her;  and  this  provision 
has  hem  re-enacted  in  substance,  by  "The  bankruptcy 
act,  1869,"  the  32  cS:  i>2>  Vict.  c.  71,  ss.  9-6,  97. 

180.  The  clause  in  the  county  court  act,  9  &  10 
Vict  e.  95,  which  rendered  the  patties  to  suits  compe- 
tent witnesses  in  those  courts,  extended,  as  has  been 
seen,  to  "  their  wives,  and  all  other  persons."  (/z)  But 
in  the  superior  courts,  the  subsequent  statute  14  &  15 
Yict.  c.  99,  while  it  removed  the  restriction  on  the 
parties  themselves  in  almost  all  cases,  (z')  contained 
in  its  3rd  section  an  express  clause,  that  nothing 
therein  contained  should  "in  any  criminal  proceeding 
render  any  husband  competent  or  compellable  to  give 
evidence  for  or  against  his  wife,  or  any  wife  competent 
or  compellable  to  give  evidence  for  or  against  her 
husband"  —  language  which  gave  rise  to  a  doubt, 
whether  husbands  and  wives  were  not  thereby,  by 
implication,  rendered  competent  witnesses  for  and 
against  each  other  in  civil  proceedings.  This,  after 
some  conflict  of  opinion,  was  determined  in  the  neg- 
ative (/-) — -whether  rightly  or  not  is  now  immaterial 
to  discuss ;  for  by  the  16  &  1  7  Vict.  c.  83,  s.  4,  the  pro- 
viso in  the  6  &  7  Vict.  c.  85,  which  continued  the  in- 
competency of  the  husbands  and  wives  of  the  parties 
to  a  suit,  &c.,  was  repealed,  and  the  following  provi- 
sions were  enacted : 

Sect.  1.  "  On  the  trial  of  any  issue  joined,  or  of 
any  matter  or  question,  or  on  any  inquiry  arising  in 
any  suit,  action,  or  other  proceeding  in  any  court  of 

(h)  Supra,  §  173.  B.  367  ;    Barbat    v.   Allen,    7     Exch. 

(i)  Supra,  \  174.  609;    McNeillie   v.   Acton,    17   Jurist, 

U)    Stapleton     v.    Crofts,     iS     Q.      661. 


WITNESSES.  277 

justice,  or  before  any  person  having  by  law  or  by  con- 
sent of  parties  authority  to  hear,  receive,  and  examine 
evidence,  the  husbands  and  wives  of  the  parties  there- 
to, and  of  the  persons  in  whose  behalf  any  such  suit, 
action,  or  other  proceeding  may  be  brought  or  in- 
stituted, or  opposed  or  defended,  shall,  except  as  here- 
inafter excepted,  be  competent  and  compellable  to 
give  evidence,  either  \iva  voce  or  by  deposition,  ac- 
cording to  the  practice  of  the  court,  on  behalf  of  either 
or  any  of  the  parties  to  the  said  suit,  action  or  other 
proceeding." 

Sect.  2.  "  Nothing  herein  shall  render  any  husband 
competent  or  compellable  to  give  evidence  for  or 
against  his  wile,  or  any  wife  competent  or  comDellable 
to  give  evidence  for  or  against  her  husband  in  any 
criminal  proceeding,  or  in  any  proceeding  instituted 
in  consequence  of  adultery." 

Sect  3.  "  Xo  husband  shall  be  compellable  to  dis- 
close any  communication  made  to  him  by  bis  wife 
during  the  marriage,  and  no  wife  shall  be  compellable 
to  disclose  any  communication  made  to  ')<  by  her 
husband  during  the  marriage" 

And  now  by  the  32  &  2>Z  Vict.  c.  68,  it  is  enacted 
as  follows  : 

Sect  1.  "The  fourth  section  of  chapter  ninety-nine 

of  the  statute   passed  in  the  fourteenth  and  fifteenth 

of  Ixr   presenl    Majesty,  and    so  much  of  1  he 

ond    section    <>\    '  The  evidence    amend  me  nl    act, 
23/  as  is  contained  in  the  words  'or  in  any  proceed- 
ing instituted  in  consequence  <>|  adultery,' are  hereby 
repealed." 

Sect.  2.  "The   panics  to  any  action  lor  breach  of 
promise  of  marriage  shall   be  competent  to  give  evi- 
dence in  such  action ;  provided  always,  thai  no  plain- 
in  any  action  for  breach  of  promise  of  marriage 


2;S  INSTRUMENTS    OF    EVIDENCE. 

shall  recover  a  verdict,  unless  his  or  her  testimony 
shall  be  corroborated  by  some  other  material  evidence 
in  support  of  such  promise." 

Seet.  3.  "  The  parties  to  any  proceeding  instituted 
in  consequence  of  adultery,  and  the  husbands  and 
wives  of  such  parties,  shall  be  competent  to  give  evi- 
dence in  such  proceeding :  provided  that  no  witness 
in  any  proceeding,  whether  a  party  to  the  suit  or  not, 
shall  be  liable  to  be  asked  or  bound  to  answer  any 
question,  tending  to  show  that  he  or  she  has  been 
guilty  of  adultery,  unless  such  witness  shall  have 
already  given  evidence  in  the  same  proceeding  in  dis- 
proof of  his  or  her  alleged  adultery." ' 

1  The  question  as  to  the  admissibility  of  the  husband's  tes- 
timony to  the  fact  of  his  wile's  adultery,  in  a  civil  suit  brought 
by  him   for  damages,  against  an   alleged  adulterer,  lias  very 
recently  met  with  exhaustive  argument  in  the  suit  of  Theo- 
dore  Tilton   v.  Henry  Ward  Beecher:  Brooklyn  City  Court, 
1875  (Sec  McDivitt's  edition,  vol.  1,  p.  350  ct  seq.).     Mr.  Evarts, 
in  arguing  against  Mr.  Tilton's  admissibility  as  a  witness,  cited 
the  following  American  authorities:  Greenl.  on  Evidence,  334, 
345;  2   Kent  Comm.  178;  Hasbouck  v.  Vandervoort,  9  N.  Y. 
153:  People  v.  Mercein,  8  Paige,  50;  King  v.  King,  2  Rob.  Ev. 
153;  Stein  v.  Povvman,  13  Pet.  209;  Babcock  v.  Booth,  2  Hill, 
1    1  ;   Burrill  v.  Hull,  3  Sandf.  Ch.  15.     And  as  regards  the  New 
York  statute  of  1 867,  X.  Y.  Ses^.  Laws,  1867,  p.  2221 ;  Southwick 
v.  Southwick,  4f;  X.  V.  5  io.      Mr.  Pryor,  opposed,  cited,  for  the 
admission  of  plaintiff's  testimony,  N.  V.  Code  of  Procedure, 
'9!   1    Greenl.   on    Evidence,   §   342;    Porter  v.   Marsh,  30 
Barb.  506;  24  How.  Pr.  610  (note);  Wehrkampt  v.  Willett,  4 
Abb.  App.  Dec.  54S;   1  Keycs,  250;   Barton  v.  Gledill,  12  Abb 
O.   S.   246;    People   v.  Chambcrlin,  23   N.  Y.   85;  Hooper  v 
Hooper,  43  Barb.  297  ;  Hall  v.  Halloo  How.  Pr.  59;  White  v. 
Stafford,  35  Barb.  419;   Card  v.  Card.  39  N.  Y.  317;   Shirley  v 
Vail,  30  How.  Pr.  407;  Smith  v.  Smith,  15   How.  165;  Mave- 
rick v.  Eighth-Avenue  R.  R.  Co..  36  X.  Y.  378;   Carpenter  v. 
White,  46  Barb.  292;  Babbott  v.  Thomas,  31  Id.  277;  Schaflfer 
v.  Reuter,  37  Id.  44;   Matteson  v.  New  York  Central  R.  R.  Co.. 
62  Id.  364;   35    X.  Y.  487;   Shoemaker  v.  McKee,  19  How.  86; 
Dann  v.  Kingdom,  1    Thomp.  &   C.  492  (criticised);  Petrie  v 


WITNESSES.  279 

181.  We  have  seen  that  the  14  &  15  Vict.  c.  99 
having  by  its  second  section  removed  the  incompe- 
tency of  parties  in  general,  retained,  by  its  third  sec- 
tion, the  incompetency  of  persons  who,  in  any  crim- 
inal proceeding,  were  charged  with  the  commission 
of  any  indictable  offense,  or  any  offense  punishable  dii 
summary  conviction  ;  and  both  that  statute  and  the 
16  cc  1 7  Vict.  c.  83,  s.  2,  expressly  provided  that,  in 
criminal  proceedings,  husbands  and  wives  should  not 
be  competent  or  compellable  to  give  evidence  for 
or  against  each  other.  (/)  In  this  state  of  the  law, 
arose  the  ease  of  The  Attorney-General  v.  Raclloff, 
(tri) — \\Jaich  was  an  information  in  the  exchequer  by 

(/)  Supra,  %  1  So.  (w)  io  Exch.  84. 

Howe,  4  Thotnp.  &  C.  S5 ;  Royal  Insurance  Co.  v.  Noble,  5 
Abb.  Pr.  X.  S.  55;  State  v.  Briggs,  9  R.  I.  361  ;  State  v.  Wil- 
son, 2  Vroorn  (N.  J.)  And  sec  Mr.  Beach's  argument,  on 
p.  370  nf  McDivitt's  edition  of  the  trial;  and  the  reply  of 
Mr.  Evarts,  p.  378;  citing  Taylor  v.  Jennings,  7  Rob.  581  ; 
Manchi  ter  v.  Manchester,  24  Vt.  649;  Bunnell  v.  Great- 
head,  49  Barb.  109;  besides  numerous  English  authori- 
ties. Said  Judge  Neilson:  "In  determining  the  question 
raised  by  this  objection,  the  court  holds  that  the  plaintiff  is 
competenl  to  be  sworn,  and  to  testify  in  his  own  behalf;  th.it 
touching  the  principal  question  in  issue,  he  is  not  competent 
to  testify  to  any  confidential  communication  "  It  is  consid- 
ered that  this  qualified  direction  respects  the  pre  enl  state  of 
our  law  of  evidence,  as  the  same  has  received   legislative  and 

judicial  1  i"ii :  and  also  respects  what    ma)  remain  of 

the  rule  which   impo  ilence  or  restrainl    by  reason  of  the 

marital  relation,  and  on  grounds  of  public  inten    1  or  policy. 

I  he   New  Yi  tatute,  undei    which   this  decision  was   ren- 

dered, i    a  fol  lov 

"  An  a<  t  i"  1  nable  husband  and  wile,  or  either  of  them,  1  1 
lie  a  wit  in  s  tor  ■•!  against  1  In-  "ihei .  01  cm  behalf  of  any 
pai tv.  in  1  ertain  1  ases,     Pa   sed  Ma)   to,  1867. 

•    «  1  lie   people    ■'    1  he     tate  ol    New  Y<-t  k,  n  pr<   ented    in 
late  a  nd  a    embly,  do  ena<  t  as  follow 
•'Section    1.    In  any  trial  or  inquiry  in  any  suit,  action  01 


28o  INSTRUMENTS    OF    EVIDENCE. 

the  attorney-general  for  an  alleged  violation  of  the 
revenue  laws;  and  in  which  the  question  was  raised, 
whether  the  defendant  was  rendered  a  competent  wit- 
ness by  the  14  cc  15  Viet.  c.  99.  Polloek,  C.  B.,  before 
whom  the  ease  was  tried,  held  his  evidence  inadmis- 
sible ;  and,  a  verdict  having  been  given  for  the  crown, 
a  rule  was  granted  for  a  new  trial,  on  the  ground  that 
the  witness  had  been  improperly  rejected.  After 
argument  and  time  taken  to  consider,  the  barons, 
differing  in  opinion,  delivered  their  judgments  sepa- 
rately ;  Polloek,  C.  B.,  and  Parke,  B.,  holding  that 
the  witness  had  been  rightly  rejected,  and  Piatt  and 
Martin,  BB.,  that  he    ought  to  have    been   received. 

proceeding  in  any  court,  or  before  .any  person  having  by  law 
or  consent  of  parties,  authority  to  examine  witnesses  or  hear 
evidence,  the  husband  or  wife  of  any  party  thereto,  or  of  any 
person  in  whose  behalf  any  such  suit,  action  or  proceeding  is 
brought,  prosecuted,  opposed  or  defended,  shall,  except  as 
hereinafter  stated,  be  competent  and  compellable  to  give  evi- 
dence, the  same  as  any  other  witness,  on  behalf  of  any  party 
to  such  suit,  action  or  proceeding. 

"  Section  2.  Nothing  herein  contained  shall  render  any 
husband  or  wife  competent  or  compellable  to  give  evidence 
for  or  against  the  other  in  any  criminal  action  or  proceeding 
(except  to  prove  the  fact  of  marriage  in  case  of  bigamy),  or  in 
an)'  action  or  proceeding  instituted  in  consequence  of  adultery, 
or  in  any  action  or  proceeding  for  divorce  on  account  of  adul- 
tery (except  to  prove  the  fact  of  marriage),  or  in  any  action  or 
proceeding  for  or  on  account  of  criminal  conversation. 

"Section  3.  No  husband  or  wife  shall  be  compellable  to 
disclose  any  confidential  communication  made  by  one  to  the 
other  (iu ring  their  marriage. 

'•This  act  shall  take  effect  immediately." 

A  bill  was  subsequently  introduced  into  the  New  York 
legislature,  which  would  have  had  the  effect  of  allowing  Mrs. 
Tilton,  the  plaintiff's  wife,  to  testify,  but  failed  to  become  s 
law.  Ultimately,  the  plaintiff  offered  to  waive  any  legal  oh 
jection  they  might  have  to  Mrs.  Tilton  as  a  witness,  but  the 
defense  declined  to  call  her.  McDivitt's  edition  of  the  Tilton- 
Beecher  Trial,  vol.  III.  p.  298. 


VYTXESSES.  281 

The  rule  for  a  new  trial  accordingly  dropped  ;  but 
several  statutes  have  since  b.een  passed,  with  the  view 
of  settling  the  law  on  this  subject.  The  17  &  t8  Vict, 
c.  1^2,  s.  15,  enacted,  th  t  the  second  section  of  the  1  ! 
&  15  Vict.  c.  99,  should  not  be  deemed  to  apply  to  any 
prosecution,  suit,  or  other  proceeding  in  respect  of  any 
offense,  or  for  the  recovery  of  any  penalties  or  forfeit 
ures  under  any  law  then,  or  thereafter  to  be  made 
relating  to  the  customs  or  inland  revenue.  This  was 
repealed  by  the  18  &  19  Vict.  c.  96,  s.  44,  and  re-en- 
acted by  sect.  36  of  that  act.  The  20  &  21  Vict.  c.  62, 
without  repealing  that  portion  of  the  18  &  19  Vict.  c. 
96,  enacts  in  its  14th  section,  that  "The  several  acts 
which  declare  and  make  competent  and  compellable  a 
defendant,  to  give  evidence  in  any  suit  or  proceeding 
to  which  he  may  be  a  party,  shall  not  be  deemed  to  ex- 
tend or  apply  to  defendants  in  any  suit  or  proceeding 
institut  !  under  any  act  relating  to  the  customs."  It 
will  be  ob  erved  that  this  last  statute  only  speaks  of 
acts  relatii  2  to  the  customs;  and  none  of  the  above 
acts  males  any  mention  of  the  husbands  or  wives  of 
the  parti  to  the  proceedings.  But  the  18  &  [9  Vict, 
c.  96,  s.  36,  and  the  20  ec  21  Vict.  c.  62,  s.  14,  are  now 
repealed  28  &  29  Vict.  c.  [04,  s.  33.  And  sect.  34 
of  tint  t;  t  itc  enacts,  thai  the  14  &  15  Vict.  c.  99,  ss. 
2  and  3  in'!  [6  &  17  Vict.  c.  83,  "  shall  extend  and 
apply  to  pi  lings  at  law  un  the  revenue  side  of  the 

coiut  ;  .in  !  any  proceeding  at  law  on  the  revenue  side 
of  the  <  1  hall  not,  for  the  purpi  >ses  of  t  his  act,  be 
deemed  1  criminal  proceeding,  within  tli<'  meaning  of 
the  said  ections  and  act  as  extended  and  applied  by 
the  pre  cl  ion."     I  >.    ect.  35,  1  he  revenue    ide  of 

the  com  .1  court  of  law,  shall  be  deemed  to  be  a 

'  court  of  civil  judicature  within   the  meaning  of  sect 
103  of  the  common   law  procedure    Act,  [854,  17  & 


2S2  INSTRUMENTS    OF    EVIDENCE. 

iS  Vict,  c.  125;  and  sect.  22  contains  a  similar  provi- 
sion relative  to  the  court  of  exchequer,  exercising 
jurisdiction  of  authority  in  suits  relating  to  the  reven- 
ues of  the  crown,  and  of  the  duchies  of  Lancaster  and 
Cornwall,  instituted  and  conducted  according  to  the 
forms  of  equitable  procedure. 

182.  The  14  &  15  Vict.  c.  99,  s.  4,  as  has  been 
seen,  (n)  retained  the  incompetency  of  the  plaintiff 
and  defendant  in  all  proceedings  instituted  in  conse- 
quence of  adultery.  (<?)  And  by  sect.  48  of  the  20  & 
21  Vict.  c.  85,  which  created  the  court  for  divorce 
and  matrimonial  causes,  it  was  enacted  that  the  rules 
of  evidence  observed  in  the  superior  courts  of  common 
law  at  Westminster,  should  be  applicable  to  and  be 
observed  in  the  trial  of  all  questions  of  fact  in  that 
court.  The  effect  of  the  32  &  33  Vict.  c.  68,  s.  3,  (/) 
therefore,  will  be  to  render  competent  as  witnesses,  in 
that  court,  the  parties  to  any  proceeding  instituted 
therein  in  consequence  of  adultery,  and  the  husbands 
and  wives  of  such  parties. 

By  the  22  &  23  Vict.  c.  61,  s.  6,  it  is  enacted,  that 
'  On  any  petition  presented  by  a  wife,  praying  that 
her  marriage.'  may  be  dissolved,  by  reason  of  her  hus- 
band having  been  guilty  of  adultery  coupled  with  cru- 
elty, or  of  adultery  coupled  with  desertion,  the  hus- 
band and  wife  respectively  shall  be  competent  and 
compellable  to  give  evidence  of  or  relating  to  such 
cruelty  or  desertion."  And  it  was  held,  that  a  peti- 
tioner or  respondent,  who  was  examined  under  that, 
section  upon  an  issue  of  cruelty  or  desertion,  might 
be    cross-examined    on    the    question    of  his    or    her 

in)  Supra,  i  174.  held  not  to  he  within  the  act.     Black- 

(o)   But  a  petition   for  restitution  of  borne  v.  Blackborne,  L    Rep.,  1   P.  & 

conjugal    rights,  to   which   an   answer  D.  563. 

had  been  filed,  charging  adultery,  was  (/>)  See  supra,  s.  180. 


WITNESSES.  283 

adultery,  (q)  But,  since  the  32  &  $$  Vict.  c.  68, 
s.  3,  a  witness  cannot  be  cross-examined,  even  in  mit- 
igation of  damages,  as  to  any  act  of  adultery  respect- 
ing which  he  or  she  has  not  been  examined  in  chief; 
— the  language  of  that  section  being,  "  that  no  witness 
in  any  proceeding  .  .  .  shall  be  liable  to  be  asked 
or  bound  to  answer  any  question,  tending  to  show 
that  he  or  she  has  been  guilty  of  adultery,  unless 
such  witness  shall  have  already  given  evidence  in  the 
same  proceeding,  in  disproof  of  his  or  her  alleged 
adultery."  (r) 

183.  Before  dismissing  the  subject  of  the  incom- 
petencyof  witnesses,  it  will  be  necessary  to  advert  to 
certain  persons,  who,  in  consequence  of  their  peculiar 
position  or  functions,  may  seem  incompetent  to  give 
evidence.  And  foremost  among  these  stands  the 
VEREIGN.  It  has  been  made  a  question  whether  he 
can  be  examined  as  a  witness  in  our  courts  of  justice, 
and  if  so, whether  the  examination  must  be  on  oath 
in  the  usual  way.  Conceding  of  course,  that  no  com- 
pul  ;ory  process  could  be  used  to  obtain  the  evidence, 
it  seems  1  h  it  both  quesl  ion ;  oughl  to  be  answered  in  the 
affirmal  ive ;  and  of  this  opinion  are  some  modern  text 
writers.  |  1  If  has  been  objected  thai  as  the  tribunal, 
it  leasl  the  Court  of  Queen's  Bench,  represents  the 
soven  ign,  there  is  an  absurdity  in  asking  him  to  give 
testimony  to  himself ;  bul  th<  sam<  mighl  be  said  of 
his  pleading  before  himself,  which  nevertheless  takes 
place  in  all  criminal  trials  where  the  sovereign  is 
represented  in  one  sens*  by  the  1  ourt,  and  in  another 
by  the  attorney-general    or   those   who  act   for  him. 

Boardma n  v.  Boardman ,  1     '  Tayl.   Ev.  %   1246,  5th  ed.     See 

I    I'.     .    D.    '33-  I'll-  &  Ami.  Iiv.   8. 

(r)  ■  v.  Babbage,  L.  Rep.  2 

P.  &  I).  222. 


284  INSTRUMENTS    OF    EVIDENCE, 

In  j  Rol.  Abr.  686,  II.  pi.  i,  is  the  following  passage: 
"  Semble  qui  le  roy  ne  poet  estre  un  testimonie  en  un 
cause    per   son    lettres  desouth  son  signett    manuell. 

Contra  I  !<>!>. r.i's  Rep.  288, enter  Abigny et  Clifton  en 
Chancery  allow."  But  in  Omichund  v.  Barker,  (/) 
L.  C.J.  Willis  says,  "  Even  the  certificate  of  the  king 
under  his  sign  manual  of  a  matter  of  fact  (except  in 
one  old  ease  in  chancery,  Hoi).  213),  has  been  always 
refused."  The  case  referred  to  in  these  books  seems 
to  be  that  of  Abignye  v.  Clifton,  Hob.  213,  temp. 
Jac.  I.,  in  which  the  question  was  concerning  a 
promise  supposed  by  the  plaintiff  to  be  made  to  him, 
of  assurance  of  land  upon  the  marriage  of  his  lady, 
being  daughter  and  heir  apparent  to  Lord  Clifton  and 
his  lady.  "  The  king,"  says  the  report,  "  by  his  letters 
under  his  signet  manual,  certified  to  the  late  Lord 
Chancellor,  and  also  to  this,  the  manner  and  substance 
of  the  promise  as  it  was  made  to  his  majesty ;  in 
regard  whereof  his  majesty  gave  to  the  Lord 
Abignye  ,£18,000,  in  lieu  of  ,£1,000  per  annum  in 
land,  which  he  had  promised,  which  certificate  was 
allowed  upon  the  hearing  for  a  proof,  without  excep- 
tion for  so  much."  This  case  stands  alone  and 
amounts  to  little.  1.  The  evidence  was  admitted 
without  exception  taken.  2.  It  is  probable  that  the 
reason  for  admitting  it  was,  not  that,  propter  honoris 
respectum,  the  sovereign  could  not  be  examined  as  a 
witness,  bat  a  forced  analogy  between  the  certificate 
of  the  king  and  the  certificate  of  marriage  given  by  a 
bishop,  &c.  And  this  view  derives  some  confirmation 
from  the  fact  that,  in  the  same  reign,  in  a  case  of  Alsop 
v.  Bowtrell,  ( [u )  the  Court  of  King's  Bench  held  for  suffi- 
cient proof  <  t  a  marriage  at  Utrecht,  a  certificate  under 

(/)  \\  illes,  ;  (n)  Jac.  Cor.  ^14. 


WITNESSES.  285 

the  seal  of  the  minister  there,  and  of  the  town  that 
the  parties  had  been  married  there,  and  that  they  coha- 
bited for  two  years  together  as  man  and  wife  ;  a  de- 
cision condemned  by  C.  J.  Willes  in  Omichund  v. 
Barker,  and  clearly  not  law  at  the  present  day. 
Perhaps,  also,  as  the  certificate  in  Abignye  v.  Clifton 
related  to  a  grant  of  money  by  the  crown,  the  court 
may  have  confounded  it  with  a  royal  charter ; 
but,  in  any  view  of  that  case,  it  is  far  from  being  a 
judicial  determination,  that  the  testimony  of  the  sove- 
reign can  in  general  be  received  without  oath.  Sir 
Matthew  Hale  also  seems  to  have  thought  otherwise, 
for  he  says,  (x)  "  If  a  man  be  indicted  of  high  treason, 
the  king  cannot  by  his  great  seal  or  ore  tenus  give 
evidence  that  he  is  guilty,  for  then  he  should  give 
evidence  in  his  own  cause.  Nay,  although  he  may 
in  person  sit  on  the  king's  bench,  yet  he  cannot  pro- 
nounce judgment  in  case  of  treason  ;  but  it  is  per- 
formed by  the  senior  judge;  for  as  lie  cannot  be  a 
witness,  so  he  cannot  be  a  judge  in  propria  causa. 
And  the  same  law  is  for  felony  for  the  same  reason, 
y.  1  in  -in-  1  ases  the  king's  testimony  under  his  great 
seal  is  allowable,  as  in  an  essoin  de  servitio  regis,  the 
warrant  under  the  great  seal  is  a  good  testimonial  of 
it."  lithe  sovereign  is  an  incompetenl  witness  under 
any  circumstances,  the  whole  of  this  passage  is  un- 
meaningand  irrelevant.  The  only  authorities,  how- 
ever, which  Male  cites  for  the  position,  that  even  in 
criminal  cases  the  sovereign  cannot  give  evidence, 
■  lie  t he  old  records  <<l  1  he  revi  real  in  pat liamenl .  ;.i  1  he 
1  Ed  w.  III.,  of  the  attainders  in  the  preceding  reign, 
of  the  Earl  of  Lancaster  and  the  Mortimers ;  (  y 
A'hieh  certainly  do  not  bear  it  out.     For  the  groun 

(jr)  2  Hale,  1'.  C.  282.  ;th  in  1  Hale,  I'.  <'.  .hi.  and  ?  Id. 

0'i  recoads   are  set   out   at      2 1 7,  respectively. 


2S6  INSTRUMENTS     OF    EVIDENCE. 

of  the  reversal  of  those  judgments  appears  clearly, 
from  the  records  themselves,  to  have  been  that  the 
accused  were  not  arranged  and  tried  by  their  peers  in 
due  eourse  of  law,  but  the  king's  asseveration  of  their 
guilt  was  taken  as  conclusive.  (V)  In  Taylor  on  Evi- 
dence, (a)  it  is  stated,  on  the  authority  of  Lord 
Campbell  in  his  Lives  of  the  Chancellors,  that  "  the 
point  arose  in  the  reign  of  Charles  I.,  when  the  Earl 
of  Bristol,  who  was  impeached  for  high  treason,  pro- 
pi  ;ed  to  call  the  king  for  the  purpose  of  proving  cer- 
tain conversations  which  he  had  held  with  him  while 
prince.  The  subject  was  referred  to  the  judges  ;  but 
they,  acting  under  the  direction  of  his  Majesty,  forbore 
from  giving  any  opinion,  and  the  question  remains  to 
this  day  undetermined.  In  the  Attorney-General  v. 
Radloff,  (aa)  Parke,  B.,  said  incidentally,  for  it  was 
wholly  needless  to  the  decision  of  the  case,  "  It  is 
clear  that  the  sovereign  cannot  be  a  witness,  because 
there  is  no  means  of  compelling  her  attendance." 
But,  although  there  may  be  no  means  of  compelling 
the  attendance  of  a  witness  who  resides  out  of  the 
jurisdietion  of  the  court,  his  evidence  is  perfectly  re- 
ceivable if  he  attends  voluntarily  ;  and  there  are  many 
questions  which  may  be  put  to  almost  any  witness, 
which  it  is  quite  discretionary  with  him  whether  he 
will  answer.  It  only  remains  to  add,  that  no  infer- 
ence can  be  drawn  from  the  fact,  that  in  the  various 
cases   of  discharging   firearms    and   throwing  missiles 

(z)   If  the  general  lav,  '  of  the  "  Let  the  word  of  a  bishop  and  of  the 

times  of  Edw.  II.  shoul  emed  king  be  without  an  oath,  incontrovert- 

insufficient   to   account  for  this  enor-  ible."     See  ad   id.,  Pufendorf,  de   ]i:i. 

mous   irregularity,  even    in  a  >tnte   of  Nat.  &  Gent.  lib.  4,  cap,  2    §  2,  vers, 

prosecution,  a  solution   for  it  maybe  fin.;   Devotus,  Inst.  Canon,  lib.  3,  tit 

'found  in  the  views  of  the  middle  ages.  9,  £  XII.,  not.  1,  5th  ed. 
For  instance,  in  the  law-,  of  Wilm  [it)   ;'  1  .'  (o,  .4 1 li  ed. 

Xiuy  of    Kent,   about   the  beginning  [aa)  10  Exch.  84,  94. 

of  the  eighth  century,  i  16,  we    read, 


WITNESSES.  287 

at  the  sovereign,  which  have  occurred  from  time  to 
time,  (d)  the  sovereign  was  not  examined  as  a  witness. 
For  in  proceedings  for  assault  or  other  personal  injury, 
it  is  not  requisite,  as  matter  of  law,  that  the  injured 
party  should  appear  in  the  witness-box;  his  absence 
is  only  matter  of  observation,  which,  in  the  case  of 
the  sovereign,  would  be  fully  answered  by  the  incon- 
venience of  calling  such  a  witness,  so  long  as  any 
other  satisfactory  proof  could  be  procured. 

184.  The  other  persons  to  whom  we  have  alluded, 
as  apparently  incompetent  to  give  evidence,  are  the 
counsel  and  attorneys  engaged  in  a  cause,  and  the 
judges  and  jurymen  by  whom  it  is  tried.  With  re- 
spect to  one  of  these  there  is  no  difficulty  ;  for  it  is 
settled  law,  ami  every  day's  practice,  that  an  attorney 
is  a  competent  witness  either  for  or  against  his  client  ; 
although  neither  attorney  nor  counsel  will  be  per- 
mitted, without  the  consent  of  the  client,  to  disclose 
matters  communicated  him  in  professional  confidence. 
(1)  But  whether  the  counsel  in  a  cause  are  compe- 
tent witn  wa  formerly  a  disputed  question.  In 
a  case  of  Stones  v.  Byron,  (d)  which  was  tried  before 
a  sheriff,  the  plaintiff  appeared  by  his  attorney,  who 
■  i'  ted    as  his  advocate,  and  who,  after   the  witnesses  on 

both  sides  had  been  examined,  made  a  speech  in  re- 
ply, and  proposed  to  call  himself  ;is  a  witness  to  con- 
tradicl  the  defi  1  up.     This  was  objected  Co,  but 

allowed  by  the  sheriff ;  and,  a  rule  for  a  new  trial  hav- 
been  granted,  on   the  ground   thai   the  evidence 
ought   to   have   been   rejected,  the  case  came  on  for 
ament    before    Pattei  on,  J.,  in   the   bail  court      In 

(d)  See   the   case     of     ttadfield    in  a,  bk.  3,  pt.  2,  ch.  8. 

1800,  27  Ho.  St.  Tr.  1 2S2  ;  of  Collins  1    Dowl.  &    L.  393  ;   1   15.  C.  K. 

in   1832,  5  C  &    P.    oj  ,  o!  Oxford  in  248;  Mich.  1-  , 
1840,  9  Id.  525,  &o. 


288  INSTRUMENTS    OF    EVIDENCE. 

support  of  the  rule  it  was  argued,  that  "it  would  be  a 
practice  attended  with  the  most  mischievous  conse- 
quences, if  an  attorney  or  any  other  person,  acting  as 
the  advocate  of  a  party,  could  afterwards  present  him- 
self  before  the  jury  as  a  witness,  to  support  those 
statements  he  hail  been  making  in  the  course  of  his 
speech.  The  characters  of  an  advocate  and  a  witness 
should  be  sedulously  kept  apart.  The  one  was  a  per- 
son zealously  and  warmly  espousing  the  interests  of 
his  client ;  the  other  a  person  sworn  fairly  and  impar- 
tially, without  bias  or  favor  to  either  party,  to  tell  the 
truth  of  what  he  had  witnessed  or  heard.  The  jury 
might  have  considerable  difficulty  in  separating  those 
statements  which  they  had  heard  from  a  person  as 
advocate,  from  those  which  they  had  heard  from  the 
same  person  as  witness."  The  only  authorities  cited, 
re  the  precedent  in  the  case  of  Sir  Thomas  More,  (7) 
where  the  then  solicitor-general  who  was  conducting 
the  prosecution,  left  the  bar  and  was  received  as  a 
witness  for  the  crown  ;  which  the  counsel  in  Stones  v. 
Byron,  quoting  the  language  of  Lord  Campbell  in  his 
Lives  of  the  Chancellors,  pronounced  an  "eternal  dis- 
grace of  the  court  who  permitted  such  an  outrage  on 
decency  ;"  and  the  observations  of  the  court  of  King's 
Bench  in  R.  v.  Brice,  (_/")  where  it  was  held,  that  the 
prosecutor  of  an  indictment  has  no  right  to  aMdress 
the  jury  and  state  the  case  for  the  prosecution  ;  for 
this  among  other  reasons,  that  "the  prosecutor  may 
be,  and  generally  is,  a  witness;  and  that  it  is  very  un- 
fit that  he  should  be  permitted  to  state,  not  upon 
oath,  facts  to  the  jury  which  he  is  afterwards  to  state 
to  them  on  his  oath."  It  appears,  however,  that  in  a 
case  of  I\.  v.  Milne,  reported  in  a  note  to  R.  v.  Brice, 

(0  i  Ho.  St.  Tr    386,  390.  (/)  2  13.  &  A.  606. 


WITNESSES.  2S9 

Lord  Ellcnborough  held,  that  a  prosecutor  who 
waived  his  right  to  give  evidence,  was  not  even  then 
entitled  to  address  the  jury.  The  true  ground  of 
the  practice  unquestionably  is.  that  in  contemplation 
of  law  the  suit  is  the  suit  of  the  crown,  and  the  pro- 
secutor no  more  interested  in  it  than  any  other  wit- 
ness, (g)  Patteson,  J.,  in  the  case  we  are  now  con- 
sidering, took  the  view  of  the  defendant's  counsel, 
and  made  the  rule  absolute ;  saying  that  he  did 
not  think  the  course  of  proceeding  adopted  at 
the  trial  was  proper,  or  consistent  with  the  due 
administration  of  justice;  that  the  evidence  of  the 
attorney  ought  not  to  have  been  received  ;  and  that, 
having  been  received,  there  ought  to  be  a  new 
trial.  In  a  subsequent  case  of  Dunn  v.  Pack  wood, 
also  in  the  bail  court,  (h)  a  rule  for  a  new  trial 
was  moved  for  on  the  ground  that  the  plaintiff's 
attorney  had  acted  as  an  advocate  in  the  cause, 
and  had  then  irregularly  given  evidence  as  a  wit- 
ness. On  showing  cause,  the  case  of  Stones  v. 
Byron  was  referred  to,  but  sought  to  be  distinguished 
in  this  way:  that,  in  the  ease  then  under  considera- 
tion, the  attorney  simply  opened  his  client's  case,  and 
then  presented  himself  as  a  witness,  and  (lid  not  com- 
ment on  the  evidence  offered  by  the  other  party,  as 
is  done  in  Stones  v.  Byron,  hale  [.,  however, 
made  the  ml'-  absolute,  saying,  "1  think  it  a  very 
objection  ,•  ling  on  the  pari  of  an  attorney, 

to  give   evidence   when   acting    as   advocate    in    the 
cause."     [n  the  report  in  the   Bail  Court   Reports,  he 
i  to  have  added,  "This  principle  was  acted  on  by 
Lord  Tenterden,  .aid   I    think  it    is  sound." 

1     Abr.   '---.    "Testimo-         (/;)  tr  Jurist,  242 ;  i    B.  C.  R.  31*; 
"pi   5;  R.  v.   Brice,  a   B.  &  A.      S.  C  Deane  v.  V  I  4  I). 

'""'.  &  I..  395,  note  (b)j   Hil.  1847. 


290  INSTRUMENTS     OF    EVIDENCE. 

It  will  be  observed  that  both  these  cases  are  the 
decisions  of  single  judges,  whose  language  falls  short 
of  laying  down  as  a  universal  rule  that,  under  no  cir- 
cumstances whatever,  can  counsel  or  an  advocate  be 
examined  as  a  witness  in  a  cause  in  which  he  is  acting 
as  such.  It  would,  we  apprehend,  be  difficult  to  sup- 
port such  a  position;  for  there  are  cases  in  which  the 
advocate  might  be  the  sole  rcpositary  of  the  most 
important  evidence.  And  it  is  no  answer  to  this  to 
say,  that  if  aware  of  that  fact  he  ought  to  decline  to 
act  professionally  in  the  cause ;  for  it  not  unfre- 
quently  happens,  especially  in  criminal  courts,  that 
facts  bearing  most  powerfully  on  the  issue,  appear 
relevant  in  the  course  of  a  trial,  though  at  its  com- 
mencement it  was  impossible  to  forsee  their  relevancy. 
Suppose  an  indictment  for  a  murder  at  A.,  to  which 
the  defense  set  up  is  a  false  alibi,  e.g.,  that  the  accused 
was  on  that  day  and  hoij:  in  a  certain  room  in  a  cer- 
tain house  at  B. ;  the  counsel  for  the  prosecution  may 
have  been  alone  in  that  room  at  that  day  and  hour, 
and  may  know  of  his  own  knowledge  that  the  ac- 
cused was  not  then  there ;  could  his  evidence  be 
excluded  ? 

These  cases,  however,  of  Stones  v.  Byron  and  Dunn 
v.  Packwood,  taken  at  the  strongest,  only  show  that 
an  advocate  is  not  a  competent  witness  for  his  client, 
and  leave  untouched  the  question  whether  he  is  com- 
petent for  the  other  side.  Now  it  would  be  very  dan- 
gerous to  allow  a  party  who  knows  that  important, 
perhaps  the  only  important,  evidence  against  him  will 
be  given  by  an  advocate,  to  shut  that  person's  mouth 
by  retaining  him  as  his  counsel ;  and  if  it  be  said  that 
no  counsel  should  accept  the  retainer  under  such  cir- 
cumstances, the  answer  is,  that  the  question  is  not 
what  the  honor  of  the  bar  exacts,  but  what  the  law 


WITNESSES.  291 

will  allow.  Professional  privileges  may  be  abused, 
and  the  supposed  impeccability  of  every  member  of  a 
numerous  profession  is  an  unsafe  basis  of  legislation, 
Besides,  it  may  be  as  well  to  remark,  that  under  the 
old  law,  previous  to  the  6  &  7  Vict.  c.  85,  when  an  in- 
terest in  the  event  of  the  suit  was  ground  for  the 
rejection  of  a  witness,  the  rule  did  not  apply  to  a  case 
where  the  interest  was  fraudulently  acquired  in  order 
to  create  incompetency,  (i) 

1^5.  Nor  is  this  matter  so  barren  of  authority,  as 
appears  to  have  been  assumed  in  the  two  cases 
decided  in  the  Bail  Court.  In  Bacon's  Abridgment, 
Evidence,  A.  3,  it  is  said,  "The  inconveniency  would 
be  very  great,  if  a  counsel  were  not  at  all  to  be  made 
use  of  as  a  witness  ;  for  by  this  means  every  such  per- 
son's evidence  may  be  taken  off  by  giving  him  a  fee." 
In  Cuts  v.  Pickering,  (/£•)  the  court  laid  down  obiter, 
that  with  respect  to  competency  to  bear  testimony 
the  same  law  was  of  an  attorney  or  counsel.  And 
Sir  John  I  Iawles,  in  his  observation  on  the  State  Trials 
in  1  Jac.  II,  (/)  (ells  us,  "  Every  man  knows,  that  a 
counsel  I  b  e  enforced  to  give  evidence  against  his 
client,  provided  it  be  not  of  a  secrei  communication 
to  him  by  liis  client."  The  same  isstated  in  the  book 
called  "Trials  per  Pais;"  (m)  and  in  the  cases  of  VVal- 
dron  v.  Ward  (//)  and  Sparke  v.  Middleton,  (0)  coun- 
sel'.vim  had  been  employed  by  ;i  party  were  examined. 
Tli  mi  In-  no  doubt  that, to  call  an  advocate  in  tin1 

cause  as  a  witness  is  most  objectionable,  and  should  be 
avoided  whenever  possible.  Bui  we  apprehend  that  a 
judge    has    no    right    in    point    of  law  to   reject   him  ; 

I'h.  &  Am.  144.  (ft)  Sty.  449. 

(t)  1  Ventr.  197.  (0)  1   Keb.  505.     See  also  Mar.  83, 

(/)   n  Ho.  St.  Tr.  459.  pi.  136. 
("')   Page  385. 


2 )2  l.YS  TR UMEN  TS    OF    E VIDENCE. 

thougli  if  the  court  above  were  of  opinion  that 
under  all  the  circumstances,  any  practical  mischief  had 
resulted  from  the  reception  of  such  a  witness,  they 
might,  in  their  discretion,  grant  a  new  trial,  if  not  as 
matter  of  right,  at  least  as  matter  of  judgment. 

1 86.  These  views  are  confirmed  by  the  case  of 
Cobbet  v.  Hudson.  (/ )  After  the  14  &  15  Vict,  c 
99,  had  allowed  parties  to  a  suit  to  be  witnesses,  it 
became  clear  that — inasmuch  as  all  persons  who  sue 
or  defend  in  a  court  of  justice  may,  if  so  disposed, 
conduct  their  own  causes  without  legal  assistance — 
the  question,  whether  a  person  who  so  conducts  his 
own  cause  can  also  be  a  witness  in  it,  must  soon  pre- 
sent itself  for  decision  ;  and  the  point  at  length  arose 
in  the  case  referred  to.  At  the  trial  before  Lord 
Campbell,  C.  J.,  the  plaintiff,  who  sued  in  forma  paup- 
eris, conducted  his  cause  in  person.  The  Lord  Chief 
Justice  told  him  that  if  he  addressed  the  jury  as  an 
advocate,  he  could  not  be  permitted  to  give  evidence 
a     1  vvitn<  The  plaintiff  elected  to  act  as  advocate 

and  not  as  a  witness.  A  verdict  having  been  given 
for  the  defendant,  a  rule  was  obtained  for  a  new  trial 
on  the  ground  that  the  above  ruling  was  erroneous. 
This  rule  was  argued  before  Lord  Campbell,  C.  J., 
Coleridge  Wightman,  and  Erie,  JJ.,  and,  after  time 
taken  to  consider,  the  following  judgment  was  de- 
liven  d  by  Lord  Campbell  :  "We  are  of  opinion  that 
the  rule  for  a  new  trial  should  be  made  absolute,  on 
the-  ground  that  the  plaintiff  was  improperly  told  that 
he  could  not  be  permitted  to  address  the  jury  as  his 
own  advocate,  without  agreeing  to  waive  his  right  to 
be  examined  as  a  witness  in  his  own  behalf.  We  are 
fully  aware   of   the  inconvenient  consequences  which 

(/)  1  Ell.  &  Bl.  11. 


WITNESSES.  293 

must  follow,  from  a  party  to  a  suit  being  alternately 
during  the  trial  advocate  and  witness;  and  we  express 
our  strong  disapprobation  of  such  a  practice.  But  we 
cannot  say  that  the  judge  at  nisi  prius  has  at  present 
sufficient  authority  to  prevent  it.  Before  the  recent 
statute  (14  &  15  Vict.  c.  99),  the  party  had  a  right  to 
conduct  his  own  cause  in  person,  although  he  could 
not  be  his  own  witness;  and  by  that  statute  (sec.  2) 
he  is  rendered  'competent  and  compellable  to  give 
evidence '  as  a  witness,  without  any  abridgment  of  his 
foimer  right  to  act  as  his  own  advocate.  We  must 
be  careful  that  we  do  not  abridge  the  rights  conferred 
on  suitors  by  common  or  statute  law,  while  we  aie  act- 
ing merely  on  views  of  policy  and  expediency,  with 
respect  to  which  different  judges  may  form  different 
opinions.  It  was  stated  at  the  trial,  that  verdicts  had 
several  tim(  s  been  set  aside,  on  the  sole  ground  that  the 
same  person  had  been  permitted  to  act  as  advocate  and 
to  be  examined  as  a  witness  ;  but  when  the  e;ises  alluded 
to  are  examined, it  will  be  found  that  the  rigid  rule  con- 
tended for  is  not  laid  down  in  them.  In  Stone  v.  Byron, 
4  D.  &  L.  493,  upon  a  trial  before  the  sheriff,  an  at- 
torney having  addressed  the  jury  as  advocate  for  the 
plaintiff,  and  then  been  examined  asa  witness  lor  him, 
Patfc  on,  J.,  observed  :  'I  must  say  that  I  do  not  think 
t  hut  such  ;i  course  of  proceeding  is  proper,  or  consistent 
with  tin-  du(  administration  of  justice.  It  seemstome, 
therefore,  that  his  evidence  might  not  to  have  been  re- 
ceived, and  having  been  received,  that  there  ought  to  be 
.1  new  triaL'  But  there  the  evidence  I  mi  I  been  rec<  ivi  d 
after  the  defendant's  case  was  closed,  and  after  the  plain- 
tiffs advocate  had  replied;  and  this  irregularity,  testi- 
fying that  t  In-  undersheriff  who  presided  was  unduly  in- 
fluenced, appears  to  have  been  ;i  ground  <>f  the  d<  1  i« 
sion.     \n  Deane  v.  Packwood,  4  D.  &  L.  395,  note  (6) 


INS  TRUMEN IS    OF    EVIDENl  E. 

(very  shortly  reported  in  a  note  to  Stones  v.  Byron,  4 
D.  &  L  393),  which  was  likewise  a  trial  before  the 
sheriff!  the  plaintiff's  attorney,  after  addressing  the  jury 

advocate,  was  examined  as  a  witness  ;  and  Erie,  J., 
granted  a  new  trial  on  this  ground, but  without  laying 
down  a  general  rule  on  the  subject,  or  professing  to 
extend    the  authority  of  Stones  v.   Byron.     In    R.  v. 

ice,  2  B.  Ov  A.  606,  it  was  laid  down  that,  on  the 
trial  of  an  indictment  for  perjury,  the  prosecutor  shah 
not  be  admitted  to  address  the  jury  ;  the  court  observ- 
ing :  '  the  prosecutor  may  be,  and  generally  is,  a  wit- 
ness ;  and  it  is  very  unfit  that  he  should  be  permitted 
to  state,  not  upon  oath,  facts  to  the  jury  which  he  is 
afterwards  to  state  to  them  on  his  oath.'  But  there 
the  king  was  to  be  considered  the  party  ;  and  the  pri- 
vate prosecutor  had  no  right  to  address  the  jury,  even 
if  he  waived  his  right  to  be  examined  as  a  witness.  It 
was  said,  at  the  trial  of  this  cause,  that  since  the  late 
evidence  act  (14  &  15  Vict.  c.  99)  passed,  it  had  been 
decided,  both  before  the  Chief  Justice  of  the  Common 
Pleas,  and  the  chief  baron  of  the  exchequer,  that  a 
party  cannot  be  permitted  to  act  as  his  own  advocate 
and  to  be  examined  as  his  own  witness;  but,  after  dili- 
gent inquiry,  no  such  decision  can  be  discovered.  The 
validity  of  the  rule  contended  for,  is  rested  on  the  au- 
thority of  the  judge  at  Nisi  Prius,  to  regulate  the  pro- 
cedure in  a  way  that  may  be  most  conducive  to  the 
invi  tigation  of  truth  ;  and  the  instance  was  referred 
to  ol  an  order  for  the  witnesses  to  leave  the  court, 
with  an  intimation  that  any   witness,  who   remains  in 

art  or  returns  into  court  before  he  is  called,  shall 
not  be  examined.  But  the  judge  must  be  governed 
by  established  practice  and  the  general  rules  of  law 
With  respect  to  ordering  the  witnesses  out  of  court, 
although  this  is  clearly  within  the  power  of  the  judge 


JJ7T.YESSES.  295 

and  he-  may  fine  a  witness  for  disobeying  this  order, 
the  better  opinion  seems  to  have  been  that  his  power 
is  limited  to  the  infliction  of  the  fine,  and  that  he  can- 
not lawfully  refuse  to  permit  the  examination  of  the 
witness  ;  see  Cook  v.  Ncthercote,  6  C.  &  P.  741  ; 
Thomas  v.  David,  7  Id.  350  ;  R.  v.  Colley,  1  Moo.  & 
Mai.  329.  We  may  hope  that,  without  any  positive 
rule  against  a  party  addressing  the  jury,  and  being 
examined  as  a  witness  on  oath  on  his  own  behalf,  a 
practice-go  objectionable  is  not  likely  to  spring  up  ; 
for  it  is  not  only  contrary  to  good  taste  and  good 
feeling,  but,  as  it  must  be  revolting  to  the  minds  of 
the  jury,  it  will  generally  be  injurious  to  those  who 
attempt  it.  In  such  a  case  as  the  present  there  is  not 
the  smallest  color  for  resorting  to  it ;  for  the  plaintiff, 
suing  in  forma"  pauperis,  had  counsel  assigned  to  him, 
who  must  be  supposed  to  have  been  ready  to  support 
at  the  trial  the  certificate  he  had  given,  that  the  plain- 
tiff had  a  good  cause  of  action  ;  and  an  offer  was  freely 
made  to  the  plaintiff,  to  postpone  the  trial  till  the 
attendance  of  this  gentleman  could  be  procured.  If 
the  practice  does  gain  ground  to  a  degree  seriously 
injurious  to  the  due  administration  of  justice,"  the 
legislature  may  interfere,  or  the  judges,  under  the  au- 
thority  vested  in  them,  may  make  a  general  order 
whereby  ii  may  !»<■  prevented  in  future.  But,  as  the 
law  nou  1  mds,  we  think  the  judge  at  Nisi  Prius  ex- 
ded  his  authority,  in  refusing  t<»  allow  the   plaintiff 

to  b  imined  as  a  witn oath    aftei  addressing 

Lhe  jur)  as  :ui  advocate;  and  thai  upon  a  new  trial 
lie  musi  !»'  permitted  to  do  both,  if  he  shall  be  so  in- 
clined." Iii<-  rule  for  a  new  tiial  was  accordingly 
made  ab  iolute. 

187.   Next  as    t<>  tin-    case  of  jurors.     Ii   is  fully 
settled,  thai    1  juryman  may  be  a  witness  for  either  <»( 


296  INSTRUMENTS    OF    EVIDENCE. 

the  parties  to  a  cause  which  he  is  trying.  (</)  And  it  is 
essential  that  this  should  he  so,  as  otherwise,  persons 
in  possession  of  valuable  evidence  would  be  excluded 
it"  placed  on  the  jury  panel,  and  might  even  be  fraud- 
ulently placed  there  for  the  purpose  of  excluding  their 
testimony.  But  here  an  important  distinction  must 
be  borne  in  mind,  viz.  the  difference  between  general 
information,  and  particular  personal  knowledge.  A 
writer  on  this  subject  states  the  rule  thus,  (r)  "  It  is 
now  perfectly  settled  that  a  juror,  cannot  give  a  ver- 
dict founded  on  his  own  private  knowledge;  for  it 
could  not  be  known  whether  the  verdict  was  accord- 
ing to  or  against  the  evidence  ;  it  is  very  possible  that 
the  private  grounds  of  belief  might  not  amount  to 
legal  evidence.  And  if  such  evidence  were  to  be 
privately  given  by  one  juror  to  the  rest,  it  would  want 
the  sanction  of  an  oath,  and  the  juror  would  not  be 
subject  to  cross-examination.  If,  therefore,  a  juror 
know  any  fact  material  to  the  issue,  he  ought  to  be 
sworn  as  a  witness,  and  is  liable  to  be  cross-examined  ; 
and  if  he  privately  state  such  facts,  it  will  be  a  ground 
of  motion  for  a  new  trial."  This  distinction  is  well 
illustrated  by  the  following  cases.  In  R.  v.  Rosser, 
(j-)  the  accused  was  indicted  for  stealing,  in  a  dwelling- 
house,  a  watch  and  seals,  alleged  to  be  of  the  value  of 
£7  ;  and,  a  witness  for  the  prosecution  having  sworn 
that  the  property  in  his  opinion  was  worth  that  sum, 
the  jury  after  the  summing-up,  inquired  if  they  were 
at  liberty  to  put  a  value  on  the  property  themselves 

(//)  3  Blackst.  Com.  375  .  Trials  per  P.  648;   Manley   v.   Shaw,  Car.  &    M 

Pais,  384  ;  2  Hawk.  I".  C  C.  46,  s.  1  7  ;  361. 

1   Lill.  Pract    Reg.  552 ;  2  Id.  126;   R.  (;-)  1    Stark.   Ev.    542,  3rd  ed.  ;   Id. 

V.  Reading,  7  Ho.   St.   Tr.  267  ;    R.  v.  816.4th    ed.     See   ace.   1    I. ill.   Pract. 

Heath,    18    Id.   123;  Bennet   v.   The  Reg.   552;  2   Id.  126;  6  Ho.  St.  Tr. 

Hundred     of     Hartford,     Sty.    233;  1012  (note) ;   iS  Id.  123. 

Fitzjames  v.  Moys,  1  Sid.  133  ;  Am  (s)  7  C.  &  P.  648. 
I   Salk.  405  ;     I;,   v.    I              7  C.  6c 


ll'/TXESSES.  297 

To  this  Vaughan,  J.,  answered,  "  If  you  see  any  reason 
to  doubt  the  evidence  on  the  subject,  you  are  at 
liberty  to  do  so  Any  knowledge  you  may  have  on 
the  subject  you  may  use.  Some  of  you  may  perhaps 
be  in  the  trade."  And  Parke,  B.,  added  "  If  a  gentle- 
man is  in  the  trade,  he  must  be  sworn  as  a  witness. 
That  general  knowledge  which  any  man  can  bring  to 
the  subject  may  be  used  without ;  but  if  it  depends  on 
any  knowledge  of  the  trade,  the  gentleman  must  be 
sworn/!  And  in  Manley  v.  Shaw,  (7)  which  was  an 
action  against  the  acceptor  of  a  bill  of  exchange,  after 
the  handwriting  of  the  defendant  had  been  proved,  one 
of  the  jury,  on  looking  at  the  bill,  said  that  the  stamp 
was  a  forgery  ;  and  stated  to  the  court,  that  several 
respectable  houses  had  been  found  in  possession  of 
forged  stamps  to  a  great  amount:  on  which  Tindal,  C. 
J.,  said,  "  The  gentleman  of  the  jury  who  says  that  the 
stamp  is  a  forgery,  should  be  sworn  as  a  witness,  to 
give  evidence  to  his  brother  jurors  before  they  can  act 
upon  his  opinion;"  and  told  the  juryman  that,  if  he 
thought  proper,  lie  might  be  sworn  and  examined  as  a 
witness  to  prove  the  forgery.  The  juryman  declining 
this,  and  there  being  no  other  evidence,  the  judge 
directed  a  v<  rdicl  lor  the  plaintiff 

188.    Lastly,  with    respect    to   judges.      Xotwith- 
.    the  language  attributed  to  Gascoigne,  C.  J., 
on   thi>  subject,  ( // )  it    is  clearly   no  objection  t<>  the 
comp  of  a  witness,  th.it   he  is  named  as  a  judge 

in  the  commi  ion  under  which  the  court  is  sitting.  (V) 
Bui  a  distinction  has  been  taken  with  respeel  to  the 
judge  who  is  actual  1)   trying  the  <:iusc;(  r)  and   it 

(/)  Cai         M.    '  r  1.  \i  ;    <  Enervations    of    Sir    J. 

(«)  P.   7    II.   IV.    (i     \,;    and    nee  Hawlcx,  n  Ho.  St.  Tr,  i    , 
Plowd  i    vi.   i-'.v.  .:    1  ■  1 1.  4th  edj  1 

(x)  2  Hawk.  P.  C  1     i'\   -  t;  .   !■  G  .'    64,  7th  ed. 

Abr.   l.v.  (A    at;    R.   v.   Ha<      r,  J. 


298  fNS7'K[\UENTS     OF    EVIDENCE. 

tnay  Ik-  observed  that,  on  the  trial  of  one  of  the 
regicides  in  1660,  when  two  of  the  members  of  the 
commission  came  down  from  the  bench  to  give 
evidence,  they  did  not  return  to  it  until  after  that 
trial  was  concluded;  (z)  this,  however,  may  have 
been  matter  of  taste  and  feeling.  When  a  nobleman 
is  tried  by  the  House  of  Lords,  any  of  the  peers  is 
a  competent  witness  ;  (a)  but  then,  on  such  occasions, 
each  peer  sits  in  the  capacity  both  of  judge  and  jury- 
man. The  objection,  if  it  be  one,  to  the  competency 
of  the  judge  who  presides  at  the  trial  rests,  not  on  the 
ground  of  his  having  to  form  a  judgment  on  the  case 
-this  argument  would  exclude  the  juryman — but  on 
one  analogous  to  that  urged  against  the  competency 
of  counsel,  viz.  the  difficulty  which  the  jury  would  have, 
in  discriminating  between  his  testimony  and  his  discre- 
tion to  them  on  matters  of  law,  or  his  comments  on  the 
evidence  given  by  other  witnesses  ;  to  which  the  same 
answer  presents  itself,  namely,  that  the  presiding  judge 
may  be  the  sole  depositary  of  important  evidence,  the 
relevancy  of  which  to  the  issue  raised,  cannot  even  be 
suspected  until  the  case  is  gone  into.  Besides,  the 
litigant  parties  have  no  voice  whatever  in  the  selection 
of  the  judge,  and  cannot  challenge  him,  either  peremp- 
torily or  for  cause.  Sir  John  Hawles,  in  the  observa- 
tions to  which  we  have  already  referred,  says,  {b) 
•  1  ,\ery  man  knows  that  a  judge  in  a  civil  matter  tried 
before  him  has  been  enforced  to  give  evidence,  for  in 
that  particular  a  judge  ceases  to  be  a  judge,  and  is  a 
witness;  of  whose  evidence  the  jury  are  the  judges, 
though  he  after  reassume  his  authority,  and  is  after- 
wards a  judge  of  the  jury's  verdict."     There  can  be  no 

(z)  R.  v.  Hacker,  J.  Kely,  12.  Macclesfield's     C.-.se,     16     Id.      1252, 

(a)  Lord    Stafford's    Case,     7     IIo.       1391- 
St.    1       \y.\,     1453     1552;    Earl   of  (6)  11  Ho   St.  Tr.  45Q. 


117TXESSES.  299 

doubt,  however,  that  if  a  judge  gives  evidence  he  must 
be  sworn,  and  be  examined  and  cross-examined  like 
any  other  witness.1 

1  The  Hon.  John  Appleton,  Chief  Justice  of  Maine,  in  the 
preface  to  his  valuable  work  on  "  The  Rules  of  Evidence," 
states  the  conclusions  of  his  researches  and  experience  to 
be:  1.  But  all  persons  without  exception,  who  having  any  of 
the  organs  of  sense,  can  perceive,  and  perceiving  can  make 
known  their  perceptions  to  others,  should  be  received  and 
examined  as  witnesses;  2.  that  objections  may  be  made  to  the 
credit  but  never  to  the  competency  of  witnesses  ;  3.  that  while 
the  best  evidence  should  always  be  required,  the  best  existing 
evidence  should  not  be  excluded  because  it  is  not  the  best  evi- 
dence of  which  the  case  in  its  nature  is  susceptible.  The 
learned  author  goes  on  to  say  that  many  of  the  reforms 
pointed  out  in  his  Essay  have  been  partially  adopted.  In- 
terest and  infamy  in  very  many  of  the  states,  have  ceased  to 
be  ground  for  the  exclusion  of  testimony.  A  limited  admis- 
sion of  the  testimony  of  the  husband  and  wife  has  been 
allowed  in  cases  to  which  one  or  the  other  is  a  party.  The 
parties  in  civil  cases,  with  greater  or  less  restrictions  upon 
their  t<  .timony,  have  been  re<  eived  or  compelled  to  testify  in 
their  own  cases.  In  offenses  of  the  lowest  grade  of  crimi- 
nalitv  the  accused  in  one  state  (and  since  then  in  others)  has 
been  admitted  as  a  witness  in  his  own  behalf.  But  incom- 
petency, from  delect  or  from  a  want  of  religious  belief,  is  still 
the  n  most  of  the  states The  law  as  to  con- 

fessions and  hearsay  continues  in  a  condition  pre-eminently 
chaotic.  Different  courts,  and  the  same  couri  on  different 
employ  differing  m«  tracting  proofs.     .    .    . 

far  as  changes  have  been  made,  their  practical  working  in 
the  administration  ol  the  law  has  been  such  as  to  make-  it  a 
matter  ot  astonishment  how  courl  could  have  ever-hoped  to 
administer  justice,  when  the  evidence  now  received  was  ex- 
clude! ■  ,  p.  ii. 


3oo  INSTRUMENTS    OF    EVIDENCE. 


CHAPTER   III. 

GROUNDS    OF     SUSPICION    OF     TESTIMONY. 

FAKAGRAFM 

Exceptions  to  the  credit  of  witnesses       .....                   .  189 

Interests  and  motives  producing  falsehood  and  misrepresentation       .         .  190 

1.  Pecuniary  interest         . 190 

2.  Relations  between  the  sexes 192 

3.  Other  domestic  and  social  relations               .....  193 

4.  Desire  to  preserve  reputation           .......  194 

5.  Interest  in  or  sympathy  for  others       ......  195 

189.  "  Exceptions  to  the  credit  of  the  witness," 
says  Sir  Matthew  Hale,  (a)  "  do  not  at  all  disable  him 
from  being;  sworn,  but  yet  may  blemish  the  credibility 
of  his  testimony  ;  and  in  such  case  the  witness  is  to  be 
allowed,  but  the  credit  of  his  testimony  is  left  to  the 
jury,  who  are  judges  of  the  fact,  and  likewise  of  the 
probability  or  improbability,  credibility  or  incredibility 
of  the  witness  and  his  testimony ;  and  these  excep- 
tions are  of  that  great  variety  and  multiplicity,  that 
they  cannot  easily  be  reduced  under  rules  or  instan- 
ces." They  have  been  immensely  increased  in  conse- 
quence of  the  statutes  6  &  7  Vict.  c.  85,  14  &  15  Vict, 
c.  99,  and  16  &  17  Vict.  c.  83  ;  as  interest  in  the  event 
of  the  cause  and  infamy  of  character,  which  before 
those  statutes  constituted  objections  to  the  com- 
petency of  a  witness,  may  now  be  urged  to- the  jury 
as  objections   to  his  credit,  (b) 

190.  "Witnesses,"   says     Sir    Edward     Coke,    (c) 
'  ought  to  come  to  be  deposed  untaught,  and  without 

(a)  2  Hale.  P.  C.  276.  277.  mony    in    general,    see    Introduction 

(b)  On   the   value   of    human    testi-       pt.  I. 

(/)  4  Inst.  279. 


WITNESSES.  301 

instruction,  and  should  wish  the  victory  to  the  party 
that  right  hath,  and  that  justice  should  be  adminis- 
tered :  and  should  say  from  his  heart,  '  Non  sum  doc- 
tus,  nee  instructus,  nee  euro  de  victoria,  modo  minis- 
tretur  justitia.'"  (d)  This  truly  happy  frame  of  mind 
is,  however,  not  always  met  with ;  for  there  is  no  pos- 
sible interest  or  motive  which  may  not,  under  some 
state  of  circumstances,  taint  the  testimony  of  man 
with  falsehood  or  misrepresentation.  Much  of  course 
depends  on  the  physical  constitution,  and  the  charac- 
ter, moral  and  religious,  of  the  individual.  Some  per- 
sons seem  almost  above  any  degree  of  temptation ; 
others,  who  resist  long,  succumb  at  last  ;  others  yield 
on  slight  pressure ;  and  some  scarcely  wait  to  be 
tempted.  To  enumerate  these  interests  or  motives, 
would  be  to  enumerate  the  springs  of  human  action  ; 
(e)  but  the  following  are  among  the  principal. 

191.  First,  then,  of  pecuniary  interest,  as  being  ihe 
most  obvious.  This  was  formerly  a  ground  of  incom- 
petency;  (f  )  and  in  order  to  estimate  its  weight,  the 
condition  and  circumstances  in  life  of  the  witness 
should,  if  practicable,  be  ascertained  and  taken  into 
consideration.  The  temptation  which  poverty  affords 
to  perjury  n<  eds  little  comment. 

" Ju:  imothracum 

rorum  u  pauper 

Credicur  atque  d  "  (  q) 

"  I.n  ■;<  ind    pauvrete  n'y  a  pa  le  loyauteV'  (/;) 

Ions  like  these  however  are,  if  understood  lite 
rally,  lilx-l-,  on  human  nature;  and  the  rich  and  grea\ 
are  subject  to  temptations  of  their  own.  (*") 

(d)  Sec  ace.  Devotu*,  Inst.  Canon.  il.  Sat.  3,  vv.  144  et  teq. 

Iil>.  3 .  t  i  r  .[I.  51I1  c--l.  Bonnier,     li.ntr    <k-s     1'rcuvM 

(o  See    further   on    thu  [90  and  320. 

Benth.  Ju  I.  Ev.  bk.  10,  ch.  2  ct  scq.  (i)  Infra. 

(//'  Supra,  ch,  2. 


302  INSTRUMENTS    OF    EVIDENCE. 

192.  Secondly.  A  powerful  source  of  false  testi- 
mony is  to  be  found  in  the  relations  between  the 
sexes.  Previous  to  the  16  &  17  Vict.  c.  83,  hus- 
band and  wife  were  incompetent  witnesses  for  or 
against  each  other,  in  most  civil,  as  they  still  are  in 
most  criminal,  cases  (/£) — an  exclusion  based,  not  so 
much  on  supposed  affection  between  them,  as  on  an 
artificial  unity  of  person  established  by  the  policy  of 
the  law.  But  the  existence  of  any  other  relation  of 
this 'kind — such  as  that  of  a  man  with  his  kept  mis- 
tress, &c. — only  goes  to  the  credit  of  a  witness. 
Whether  a  man's  wife  or  his  kept  mistress  is  most 
likely  to  bear  false  testimony  in  his  favor,  depends  on 
circumstances.  In  the  one  case  there  is,  by  law,  an 
almost  indissoluble  unity  of  person,  accompanied  most 
usually  by  a  unity  of  interest,  but  still  where  affection 
may  or  may  not  exist :  in  the  other,  the  relation  prob- 
ably originated  in  at  least  some  degree  of  affection  on 
the  part  of  the  man  ;  but  then  he  may  at  any  moment 
put  an  end  to  it,  which  in  many  instances  would  de- 
prive a  woman  of  the  means  of  subsistence,  whore 
reputation  has  been  forfeited. 

193.  Thirdly.  The  interest  arising  out  of  other  do- 
mestic and  social  relations.  This  may  have  its  source 
either  in  affection,  desire  of  revenge,  or  a  dread  of 
oppression  or  vexation.  In  the  laws  of  some  coun- 
tries, blood  relationship  within  certain  degrees  has 
been  made  a  ground  of  incompetency ;  (/)  and  friend- 
ship or  enmity  with  one  of  the  litigant  parties,  may 
justly  cause  evidence  to  be  looked  on  with  suspicion. 
())i)  Nor  do  even  these  supply  the  most  efficient 
motives  to  falsehood.     A  parent  in  his  family,  <*  mil- 

(k)  See  the  preceding  chapter.  (m)  Dig.  lib.  22,  lit.  5,  1.  ?  •  >ib.  48, 

(/)   Dig.   lib.  22,  tit.  5,  11.  4   arrd    5  ;  tit.  i3.  1.  I,  §§  24  and  25  ;  Iv--«t.  in 

Domat,   Lois   Civiles,   pt.  1,  liv.  3,  tit.  loc.  cit.  §§  XI.  and  XII. 

6,  sect.  3,  £  X. 


WITNESSES.  303 

itary,  ecclesiastical,  official,  or  feudal  superior  may 
often,  without  exposing  himself  to  danger,  or  even 
shame,  inflict  mischief  almost  boundless  on  those  who 
are  subject  to  his  authority.  "  Idonei  non  videntur 
esse  testes,  quibus  impcrari  potest,  ut  testes  fiant," 
said  the  Roman  law.  (71)  Among  us,  however,  this 
only  goes  to  the  credit  of  the  witness. 

194.  Fourthly.  Perjury  is  often  committed  to  pre- 
serve the  reputation  of  the  swearer.  An  example  of 
this  may  be  seen  in  those  cases,  and  they  are  of  fre- 
quent occurrence,  where  the  person  called  as  a  witness 
has,  on  some  former  occasion,  given  a  certain  account 
of  the  transaction  about  which  he  is  interrogated,  and 
is  afraid  or  ashamed  to  retract  that  account. 

195.  Fifthly.  The  last  source  of  bias  which  we 
shall  notice,  is  the  feeling  of  interest  in  or  affection  for 
others.       A    man    who    belongs    to    a    body,  or   is    a 

nember  of  a  secret  society,  governed  by  principles  un- 
known to  the  rest  of  mankind,  comes  before  the 
tribunal  loaded  with  the  passions  of  others  in  addi- 
tion to  his  own.  (o)  To  this  head  belong  those  cases, 
when-  mendacious  evidence  is  given,  through  the  sym- 
pathy generated  by  a  similarity  of  station  in  life,  or  a 
coincidence  of  social,  political,  or  religious  opinions, 
and  the  like.  This  is  very  frequently  inund  in  wit- 
nesses from  the  higher  walks  of  society;  and  it  is  not 
jrfoi  a  hostile  advocate  to  deal  with  such  witnesses  : 
— for  although  it  is  evident  they  are  misleading  the 
tribunal,  their  station  and  demeanor  alike  render  it 
unsafe  to         !.  of  t  hem  as  perjured.  (  />) ' 

(»)  Dig             !,  tit.  5, 1.  6.  abundabit,  consj  irViviei              milei 

(0)  Introd.  pt,  1  ■,  vilitatem ;  »■   potentes,  gra- 

f/1)  "Si    d                         ro  "    ■  !       tiam   oportebit    inwss^re."       Quintil, 

teitium)  "pa  n  ;  si      I                  lib.  5,  c. '/, 

\  ■'•'  rounds  for  di  crediting  a  witne       •     lit  bo— 

His  reputation   for  truth  and  veracity :    See  Rolta  '    State,  46 


3©4  INSTRUMENTS    OF    EVIDENCE. 

Ala.  204;  Rudsdill  v.  Slingerland,  18  Minn.  380;  Graham  v. 
Chrystal,  2  Abb.  (N.  V.)  App.  Dec.  26;,;  Stale  v.  Spencer,  64 
\  C.316;  Mead  v.  McGraw,  19  Ohio  St.  55  ;  Mercer  v. Wright,  3 
Wis.645.  (lis  sources  of  information:  Chance  v.  Indianapolis, 
Road  Co.,  32  I ii<l.  472  ;  Wetherbee  v.  Norris^  103  Mass.  565  ; 
Belcher  v.  Connor,  1  S.  C.  88;  Richardson  v.  Mercer,  31  111. 
263;  Rogers  v.  Ritter,  12  Wall.  317;  Real  v.  People,  53 
Barb.  551,  579;  8  Abb.  (N.  Y.)  Pr.  N.  S.  314.  Which  in- 
volves the  question  of  expert  testimony — matter  of  opinion, 
&c.  :  State  v.  Smith,  22  La.  Ann.  46S ;  Hall  v.  Costello,  48  N. 
II.  176;  Real  v.  People,  42  N.  Y.  270  ;  Bank  of  the  Common- 
wealth v.  Mudgett,  44  Id.  514;  Teerpenning  v.  Corn,  &c.  Ins. 
Co.,  43  Id.  279;  Bedell  v.  Long  Island  R.  R.  Co.,  44  Id.  367; 
Swan  v.  Middlesex  Co.,  101  Mass.  193;  Snyder  v.  Western 
Union  R.  R.  Co.,  25  Wis.  60;  Marcy  v.  Barnes,  82  Mass.  (16 
Gray)  161;  Tyler  v.  Todd,  36  Conn.  218;  Taylor  Will  Case, 
10  Abb.  (N.  Y.)  Pr.  N.  S.  301  ;  Young  v.  Makepeace,  103 
Mass  50;  Long  v.  First,  &c.  Congregation,  63  Pa.  St.  156; 
Call  v.  Byram,  39  Ind.  499;  State  v.  Morphy,  t,^  Iowa,  270; 
Ardesco  Oil  Co.  v.  Gilsen,  65  Pa.  St.  146;  Slater  v.  Wilcox, 
57  Barb.  604;  Smith  v.  Kobbe,  59  Barb.  2S9;  Moulton  v. 
MeOwen,  103  Mass.  587.  A  witness  cannot  be  called  upon 
to  give  an  opinion  as  to  a  mere  probability  which  has  no  basis 
of  fact;  People  v.  Rogers,  13  Abb.  (N.  Y.)  Pr.  X.  S.  370; 
but  see,  as  to  this,  Erickson  v.  Smith,  2  Abb.  (\.  Y.)  App. 
Dec.  64;  compare  Bishop  v.  Spening,  38  Ind.  143;  Dexter  v. 
lall,  15  Wall.  9.  The  admissibility  of  an  expert's  opinion 
depends  upon  the  locality  where,  or  the  circumstances  under 
whir:h,  he  obtained  his  experience,  see  Lawton  v.  Chase, 
108  Mass.  238;  Delaware,  &c.  Tow  Boat  Co.  v.  State,  69 
Pa.  St.  36.  The  rule  as  to  expert  testimony  as  to  a 
foreign  law  applied.  See  Barrows  v.  Downs,  9  R.  I.  446, 
where  a  Spanish  lawyer,  who  had  practiced  his  profession  in 
Cuba,  was  allowed  to  testify  from  a  printed  copy  of  the 
inish  code  of  commerce,  as  to  the  laws  regulating  special 
partnerships.  And  such  expressions  as  ''  I  think,"  "  we  sup- 
posed," and  the  like,  do  not  render  the  testimony  of  experts 
incompetent.  State  v.  Porter,  34*Iowa,  131.  The  fact  of 
nt  statements  and  conflicting  testimony  is  also  a 
fact  involving  the  credibility  of  a  witness.  See  Carroll  v. 
Charter  Oak  Ins.  Co.,  1  Abb.  (N.  Y .)  App.  Dec.  316;  Carver 
v.  Touthain,  38  Ind.  530;  Mathilde  v.  Levy,  24  La.  Ann.  421  ; 
Riley  v.  Butler,  36  Ind.  51;  Whittier  v.  State,  47  Ga.  297; 
Commonwealth  v.  Marrow,  3  Brews.  (Pa.)  402  ;  Romerlze  v. 
East  River,  &c.  Bank,   2   Sweeney  (N.  Y.)  82  ;  Spaunhorst  v. 


WITNESSES.  305 

Link,  46  Mo.  197;  State  v.  Kingsbury,  58  Me.  238;  William- 
son v.  Peel.  29  Iowa,  45S;  Johnson  v.  N.  Y.  Central  R.  R.  Co., 
39  How.  (N.  V.)  Pr.  127;  Cronly  v.  Murphy,  64  N.  C.  489. 
As  to  inconsistent  statements,  see  State  v.  Noyes,  36  Conn. 
80;  Powers  v.  State,  44  Ga.  209;  State  v.  Collins,  32  Iowa, 
36  ;  Mav  v.  Butterworth,  100  Mass.  75  ;  Gibbs  v.  Linabury, 
22  Mien.  479;  Stewart  v.  People,  23  Id.  63;  Ordway  v. 
Ilavnes,  50  N.  II.  159;  Sloan  v.  New  York,  &c.  R.  R.  Co.,  45 
X.  Y.  125  ;  Warren  v.  Haight,  62  Barb.  490. 


y 


300  INSTRUMENTS    OF    EVIDENCE. 


PART  II. 
REAL   EVIDENCE. 


PARAGRAPH 

Real  evidence     . 196 

Sometimes  direct 196 

Usually  circumstantial         .........  196 

Immediate  real  evidence         ...                  197 

Sometimes  exacted  by  law             ........  197 

Sometimes  by  practice      ........          .  197 

Often  produced  when  not  exacted 197 

Views  and  models    ..........  197 

Inspection,  &c 197 

Reported  real  evidence 198 

Infirmities  of                 198 

Circumstantial  real  evidence   .........  199 

Value  and  dangers  of,  chiefly  conspicuous  in  criminal  proceedings  199 

Infirmative  facts  or  hypotheses    ........  199 

Necessary  inferences  from  circumstantial  real  evidence  .         .         .  200 

Presumptive  inferences  from  circumstantial  real  evidence  .         .         .  201 

Physical  coincidences  and  dissimilarities            ....  201 

Inculpative,  effect  of 201 

Exculpative,  effect  of 201 

Infirmative  hypotheses  affecting  real  evidence    .                            ...  202 

1°.  Accid'.-nt     . 202 

Irresponsible  agency 202-4 

2°.  Forgery 204 

1.  Self-exculpative 2C5 

Suspected  person  innocent  in  toto          .                 .         .  205 

\>y  innocent  person  to  avert  suspicion          ....  205 

2.  Malicious        .                   ........  206 

I      I  ances      . 206 

With  double  object 207 

By  force .  207 

3.  In  sport,  or  for  a  moral  end 208 

30.   Lawful  action  of  the  accused 209 

Real  evidence  fallacious  as  to  the  quality  of  crime          ....  210 

Presumption  of  larceny  from  possession  of  stolen  property          .          .  2H 

Sometimes  shifts  the  burden  of  proof 211 

ession  must  be  recent 211 

And  exclusive    .........  212 

Carried  too  far  in  practice    .....                   .          .  213 

Explanation  of ;.              m  by  the  accused         .         .         .  214 


REAL     EVIDENCE.  307 

196.  "  Real  evidence  " — the  evidentia  rei  vel  facti 
of  the  civilians — (a)  means  all  evidence  of  which  any 
object  belonging  to  the  class  of  things  is  the  source  ; 
persons  also  being  included  in  respect  of  such  pro- 
prieties as  belong  to  them  in  common  with  things,  (ft) 
Thus  where  an  offense  or  contempt  is  committed  in 
presence  of  a  tribunal,  it  has  direct  real  evidence  of 
the  fact.  So  formerly,  on  an  appeal  of  mayhem,  the 
cour£/  would  in  some  cases  inspect  the  wound,  in  order 
to  see  whether  it  were  a  mayhem  or  not,  (c)  and  if 
the  mayhem  was  obvious,  such  as  striking  of!  an  arm, 
&.C.,  the  proof  was  both  real  and  direct.  But  in  most 
instances  real  evidence  is  only  circumstantial  in  its 
nature,  (d)  i.  c.  evidence  from  which  the  existence  of 
the  principal  fact  is  inferred  by  a  process  of  reason- 
ing. 

197.  Real  evidence  is  either  immediate  or  re- 
ported, (e)  Immediate  real  evidence  is  where  the 
thing  which  is  the  source  of  the  evidence  is  present  to 
the  senses  of  the  tribunal.  (/")  This  is  of  all  proof 
the  most   satisfactory  and  convincing — "Cum  adsunt 

timonia  mum,  quid  opus  est  verbis"  (  g  )  but,  as 
already  stated,  it  is  rarely  available,  al  leasl  with  re* 
spec!  to  principal  fa  ts.     ^nd  so  sensible  is  the  law  of 

]  '        st.   8;  Hale,  where   a   man   successfully   de- 

Jurid. ;  and  the  judgment  fended   hims<  of 

i,i    [  in  E  !  had  a  li  ight- 

II. 1    :  C.F  ful   rupture.     I  Hale,  P.  I     - 

{/')  3  Benth.  Jud.  Kv.  26  ;  1  Id.  53.  See  al  ■  )  Bonnier,  Traite*  des  Pn 

pi.  5  ;  22    Id.  pi.  99;    37  §  77- 

11.   pi.   <).  "  12   Bulst.  53.     On   this    ub 

lus  I        Prob.  Quo        i,  11 

-    (./)  Sei     1    Benth.  Jud.    Ev.   55;    3  and  I  P/raite^ 

Id.  33.  ■  11-known  1  n   the 

nth.  Jud.  Ev  of  Hoi  a 

iduction  of  real  "  S-  ritant  animos  demissa  pel 

evii!- 

cent,  the  jury  may  inspect  it  in  pi  i  qu«  sunt  oculis  subjecta  fidel 

as  was  done  in  the  c  ib 

20 


308  INSTRUMENTS    OF    EVIDENCE. 

its  transcendent  value,  lhat  in  some  cases  the  produc- 
tion of  certain  species  of  real  evidence  is  peremptorily 
exacted,  to  the  exclusion  of  all  substitutes.  Thus.it  is 
an  established  rule,  that  a  prisoner  shall  not  he  con- 
victed of  murder,  "unless  the  fact  were  proved  to  he 
done,  or  at  least  the  body  be  found  dead.  (/i)1  So,  a 
coroner's  inquest,  to  ascertain  the  cause  of  the  death 
ot  a  person  who  has  died  suddenly,  must  be  held 
super  visum  corporis,  (z)  So,  when  a  fine  was  levied, 
the  parties  were  required  by  the  ancient  statute  18 
Edw.  i  st.  4,  Modus  levandi  fines,  to  appear  personally 
before  the  justices,  in  order  that  it  might  be  discerned 
by  them  if  they  were  of  full  age  and  good  memory, 
&c.  (/')  And  the  same  seems  to  hold  in  the  case 
of  a  recognizance;  (/ )  which  is  always  expressed 
to  be  entered  into  on  the  personal  appearance  of  the 
part}'  before  the  justice  who  takes  it.  (m)  On  this 
principle,  in  a  great  degree,  rests  the  just  and  sound 
rule  of  English  judicature,  that  the  evidence  of  wit- 
nesses must  in  general  be  given  by  them  personally  in 
open  court — the  real  evidence  afforded  by  their  de- 
meanor, being  one  of  the  most  powerful  securities 
against  perjury  and  fraud.  There  are  likewise  in- 
stances where  the  production  of  real  evidence  is  exacted 

• 

[h)  2   Hale,  1'.  C.  290.     As  to  what  not  allow  the  party  to  levy  it  unless  he 

i-  sufficient   to   prove-   '•  the  fact"  "to  were  of  sound   mind.     See  Beverley's 

be  clone,"  so  as   to  dispense  with  the  Case,  4  Co.  123  1)  ;   Mansfield's   Case, 

necessity    of    proving    that   the   dead  12    Id.    124  ;    and    the    argument    in 

en  found,  see  R.  v.  Mind-  Molton  v.  Camroux,  2  Exch.  4S7. 

mar>h   2  Leach,  ■  (/)   Beverley's    Case,    \   Co.    124   a. 

Com.  348;  4  Id.  274;  Semble   per   Parke,  I;.,  in    Molton  v. 

Holl     \<  ~  \  i\    Edw.  4,  70,  71  ;  G  &  7  Camroux,  2  Exch.  487,  493. 

.  2.  (m)   See  the   precedents   in    Dalton's 

(A)  lor  this  reason  a  fine  levied  by  Country  Justice,  Burn's  Justice  of  the 

an    idiot,   lunatic,  &c,   was  good,  for  Peace,  &c. 
the  law  presumed  that  the  judge  would 

1  See,  as    to  corpus  delicti,  Udderzook's   case,  cited  post,  p 


REAL    EVIDENCE. 


309 


by  practice.  Thus  on  an  indictment  for  larceny,  if  the 
stolen  property  has  been  found,  the  court  usually  in- 
sists on  its  being  produced  before  the  jury  ;  although, 
when  the  goods  stolen  are  of  a  perishable  nature,  this 
is,  of  course,  frequently  impossible  ;  neither  would  it 
be  required  when  likely  to  be  inconvenient  or  offen- 
sive, as  where  flesh  stolen  is  in  an  advanced  state  of 
decomposition.  &c.  But  real  evidence  is  often  pro- 
duced at  trials,  when  it  is  not  exacted  by  any  rule 
either  of  law  or  practice.  Valuable  evidence  of  this 
kind  is  sometimes  given  by  means  of  accurate  and 
verified  models,  (;/)  or,  by  what  is  technically  termed  a 
"view,"  i.e.,  a  personal  inspection  by  some  of  the  jury  of 
the  locus  in  quo — a  proceeding  allowed  in  certain  cases 
by  the  common  law,  (0)  and  much  extended  by  the 
statutes  4  Anne,c.  16,  s.  8;  6  Geo.  4,  c.  50,  s.  23  ;  15  & 
16  Vict.  c.  76,  s.  114,  and  1  7  &  iS  Vict.  c.  125,  s.  58; 
which  authorized  the  court  or  a  judge,  on  the  appli- 
cation of  either  party  to  an  action,  to  grant  a  rule  or 
order  for  the  inspection  by  the  jury,  or  by  himself,  or 
by  his  witnesses,  of  any  real  or  personal  property,  the 
inspection  of  which  mighl  be  material  to  the  proper 
determination  of  thequestion  in  dispute.  And,  now, 
by  "The  Supreme  Courl  of  Judicature  Act,  [873,"  ( />) 
it  is  provided,  thai  the  courl  or  a  judge  may,  upon 
the  application  of  any  party  to  an  action,  and  upon 
su<  li  tei  in  as  ma)  eem  just,  make  any  ordei  f »r  1  lie 
d(  tention,  pre  ervation,  or  inspection  <»!  any  property, 
being  iii<-  subjei  t  oi  111  h  acti  >n  ;  and  lor  all  or  any 
oi  the  purposes  aforesaid,  may  authorize  any  person  01 
persons,  to  entei  upon  any  land  or  building  in  the  pos- 
it Is  the  ante  ml  2  Salk.  665;  2  Wmi,  Saund.  44  a, 
Bonnier,      Traitd     des      Pi  ncte  4. 

55-  (/)  36   &  37   Vict.   c.   66.      Sched 

(o)  I  .  N    11.  123  C,  1 -■-  B.,  184   I  .  ;      Rule  45. 


3io  INSTRUMENTS     OF   EVIDENCE. 

51  ssion  of  any  party  to  such  action;  or  any  samples 
to  be  taken,  or  experiments  tried,  which  seem  neces- 
sary or  expedient,  for  the  purpose  of  obtaining  full  iri- 
f  >i  mation  or  evidence. 

198.  Reported  real  evidence  is,  where  the  thing 
which  is  the  source  of  the  evidence  is  not  present  to 
the  senses  of  the  tribunal,  but  the  existence  of  it  is 
conveyed  to  them  through  the  medium  of  witnesses 
or  documents.  (q)  This  sort  of  proof  is,  from  its 
very  nature,  less  satisfactory  and  convincing  than  im- 
mediate real  evidence.  "  To  the  reporting  witness,  in- 
deed, if  his  report  be  true,  it  was  so  much  immediate, 
so  much  pure  real  evidence  ;  but  to  the  judge  it  is 
but    reported   real    evidence.     The    distinction   is   far 

i. 

from  being  a  purely  speculative  one  ;  practice  requires 
to  be  directed  by  it.  Reported  real  evidence  is  anal- 
ogous to  hearsav  evidence,  and  labors  more  or  less 
under  the  infirmities  which  attach  to  that  modification 
of  personal  evidence,  compounded  of  circumstantial 
evidence  and  direct, — of  real  evidence,  and  ordinary 
personal  evidence  (evidence  given  in  the  way  of  dis- 
course); it  unites  the  infirmities  of  both.  The  lights 
afforded,  or  said  to  have  been  afforded  by  the  real  evi- 
dence, are  liable  to  be  weakened  in  intensity,  and 
altered  in  color,  by  the  medium  through  which  it  is 
transmitted."  (r) 

199.  Circumstantial  real  evidence  partakes  of  the 
nature  of  all  other  circumstantial  evidence  in  this, 
that  the  persuasions  or  inferences  to  which  it  gives 
rise,  arc  sometimes  necessary  and  sometimes  only 
presumptive  And  as  it  is  in  criminal  proceedings 
that  the  value  and  dangers  of  this  mode  of  proof  are 
chiefly  conspicuous,  we  shall  devote  the  rest  of  this 
chapter  to  a  consideration  of  its  probative  force  and 

(?)  3  P.enth.  J.,  i.  Ev.  33.  (r)  3  Benth.  Jud.  Ev.  34. 


REAL     EVIDENCE.  311 

infirmative  hypotheses  in  those  proceedings.  By 
"  infirmative  fact  "  or  "  hypothesis  "  is  meant  any  fact 
or  hypothesis  which,  while  insufficient  in  itself  either 
to  disprove  or  render  improbable  the  existence  of  a 
principal  fact,  yet  tends  to  weaken  or  render  infirm 
the  probative  force  of  some  other  fact  which  is  evi- 
dentiary of  it.  (s) 

200.  In  the  case  of  necessary  inferences,  properly 
so  called,  there  can  be  no  infirmative  facts  or  hypo- 
theses. As  instances — where  a  female  was  found  dead 
in  a  room,  with  every  sign  of  having  met  a  violent 
end,  the  presence  of  another  person  at  the  scene  of  ac- 
tion was  demonstrated,  by  the  bloody  mark  of  a  left 
hand  visible  on  her  left  arm.  (/)  And  where  a  man 
was  found  killed  by  a  bullet,  with  a  discharged  pistol 
lying  beside  him,  the  hypothesis  of  his  having  commit- 
ted suicide  with  that  pistol  was  negatived,  by  proof 
hat  the  bullet  which  caused  his  death  was  too  large 
J)  lit  it.  (uf 

(s)  See     3     Benth.    Jud.     Ev.    14.  (/)  Case  of  Norkott  and  ot tiers,  ic 

"Socrate  ,  who,  professing   to   affirm  Harg.  St.  Tr.  App.  No.  2,  p.  29. 

nothing,  but  lo  infirm  that  which  was  («)  Theory   of    Pres.    Proof,    App 

affirmed   \>y  another,  hath  exactly  ex-  Case  2;  Wills,  Circumst.  Ev.  80,  3rd 

pre    ■'!   all    the    forms   of   objection,  ed.             othei     instances   in    Beck's 

fallacy,  and   1              i  »n."     Bac.  Adv.  Med.  Juri  pr.  p.  591,  7th  ed. 
I. earn.  bk.  2. 

1  See  Ruloff  v.  People,  45  N.  V.  1213-25;  Potts  v.  State,  43 
Miss.  472;  State  v.  Seates,  5  Jones  (N.  C.)  |.v>.  One  of  the 
most  remarkable  as  well  as  one  ol  the  latest  case  on  record, 
involving  the  qi  l  of  the  corpus  delicti,  is  thai  of  William 

E.  Udderzook,  tried  at  Westchester,  Pennsylvania,  November 
3d,  The   prisoner  was  convicted  of  murder  in  the  first 

rree,  and  after  an  appeal,  wa  \  subsequently  exe<  uted.     The 
follow  ii  le  chai  ge  ol  the  judge  1  Bui  lei )  to  the  jui 

1 .  -nil-  men  ol  the  fui  y  :  Th<  pi  ■  »nei  al  the  bar,  a  you 
have  learned,  i    charged  vvil  h  murder 

This  offense  con  si  ts  in  the  unlawful  killing  of  any  humai 
1  reature,  again  >l  the  pi  a<  e  ol  the  1  ommonwealth,  with  malice 
aforethoti  The  di  tinguishing  criterion   ol  the  '-rime  is 


3i2  INSTRUMENTS     OF    EVIDENCE. 

201.   Cases    of  this   kind    arc,    however,   of  rare 

occurrence,  and  when  they  do  present  themselves  the 

facts  speak  too  plainly  to  need  comment.    In  the  vast 

'malice  aforethought.  For  the  purposes  of  the  case  we  are 
trying,  it  is  sufficient  to  say  that  where  one  individual  mali- 
ciously takes  the  life  of  another,  he  is  guilty  of  murder. 

The  case  of  the  commonwealth  rests  upon  what  is  known 
as  circumstantial  evidence.  And  indeed  where  willful,  delib- 
erate murder,  contemplated  beforehand,  is  committed,  it  rarely 
occurs  that  direct,  positive  evidence  respecting  it  exists.  Perpe- 
trated, as  it  usually  is,  by  lying  in  wait,  by  means  of  poison,  or 
by  falling  upon  the  victim  when  no  one  is  by,  the  only  evidence 
must,  commonly,  be  found  in  the  circumstances  attending  it 
And  this  character  of  evidence  is  ascertained  by  experience  to 
be  little,  if  any,  less  satisfactory  than  that  which  is  known  as 
direct  and  positive.  Where  the  circumstances  relied  upon  are 
properly  established,  and  the  inferences  arising  from  each 
one,  and  from  all  of  them  combined,  point  naturally  in  one 
direction,  there  is  no  greater  danger  in  following  them  to 
their  conclusion,  than  attends  all  human  investigation.  That 
we  may  err  in  such  cases  is  possible;  but  so  we  may  where 
the  evidence  is  direct  or  positive;  the  circumstances  may  pos- 
sibly mislead,  but  so  may  the  eyes,  or  the  ears,  or  the  dishon- 
esty of  witnesses. 

As  was  said  by  Chief  Justice  Gibson  in  the  case  of  the 
Commonwealth  v.  Ilarman,  4  Barr,  269:  "The  only  differ- 
ence between  positive  and  circumstantial  evidence  is,  that  the 
former  is  more  immediate,  and  has  fewer  links  in  the  chain 
of  connection  between  the  premises  and  conclusion  ;  but 
there  may  be  perjury  in  both.  A  man  may  as  well  swear 
falsely  to  an  absolute  knowledge  of  a  fact  as  to  a  number  of 
Uu  ts,  by  which,  if  true,  the  question  of  guilt  or  innocence  is 
solved.  No  human  testimony  is  superior  to  doubt.  The  ma- 
chinery of  criminal  justice,  like  every  other  production  of 
man,  is  necessarily  imperfect,  but  you  are  not,  therefore,  to 
-top  its  wheels.  Innocent  men  have  doubtless  been  convicted 
and  executed  on  circumstantial  evidence ;  but  innocent  men 
have  sometimes  been  convicted  and  executed  on  what  is 
called  positive  proof.  All  evidence  is  more  or  less  circum- 
stantial, the  difference  bring  only  in  the  degree;  and  it  is 
sufficient  for  the  purpose  when  it  excludes  disbelief, — that  is, 
actual  disbelief;  for  he  who  is  to  pass  on  the  question  is  not 
at  liberty  to  disbelieve  as  a  juror  while  he  believes  as  a  man. 
It  is  enough  that  his  conscience  is  clear." 


RE  A  L    E  VIDENCE.  3 1 3 

majority  of  instances,  the  inference  to  which  a  piece 
of  circumstantial  real  evidence  gives  rise,  is  only  prob- 
able or  presumptive.     On  charges  of  homicide,  for  in- 

Now  turning  to  the  evidence,  we  find  that  on  the  9th  day 
of  July  last  (1873),  as  John  Hurford  was  passing  Baer's 
Woods,  on  the  Gap  and  Newport  Turnpike  in  this  county,  he 
observed  buzzards  about  it.  and  an  unpleasant  odor  in  the 
vicinity.  Two  days  later,  as  Gainer  P.  Moore  passed  the 
same  place,  on  his  way  to  Cochranville,  he  observed  buzzards 
there  in  large  numbers,  and  a  very  offensive  odor.  When 
returning  home  he  entered  the  woods  to  ascertain  the  cause 
of  what  he  observed ;  and  at  the  distance  of  about  sixty-five  feet 
from  the  turnpike,  discovered  (in  his  own  language)  "  some- 
thing mysteriously  hidden  ;  "  a  small  part  of  which  was  un- 
covered (doubtless  by  the  birds),  the  balance  concealed  by 
means  of  leaves  and  a  thin  covering  of  earth,  with  the  dead 
limbs  of  trees  placed  lengthwise  over  it.  Obtaining  the  aid 
oi  Mr.  Rhoades,  who  lives  some  distance  away,  he  returned 
to  the  place  with  a  shovel.  Upon  the  earth  being  raised  up  at 
the  left  side  of  the  body,  a  bloody  shirt  was  uncovered.  Next 
the  head  was  raised,  and  the  body  ascertained  to  be  that  of  a 
man.  At  this  time,  the  witness  says,  the  lace  was  quite  white 
and  natural  ;  and  he  believes  he  could  have  recognized  it,  had 
he  been  acquainted  with  the  individual  in  life.  It  was  now 
about  half-pa  1  6ve  o'clock  in  the  evening.  Theylefl  the  grave 
in  the  condition  described  ;  and  (after  attempting  to  procure 

the   aid  ol    a  man  u  lib  drove  b\    on  the  turnpike)  went   to  lYn- 

ningtonville,  and   notified  the  deput)    coroner,    Mr.   Rambo. 

'I  hi    gentleman,  with  several  othi  irted  for  the  place,  and 

ched   n.         they  have  said,  aboul    seven   o'clock,   being  a 

little   before   sun  e(      Mr,    Moore   also    returned    soon    alter. 

The     Color    ol      tin;      skin     had      now    changed,    and    was   quite 

dark  a  you  have  heard  it  described.  The  deputy  coroner 
had  the  covering  removed  loan  the  other  pan,  .,1  the  body, 
audit  n    een  that    the   legs* and  aim    were  oil.     That 

part  of  the  abdomen  which  was  exposed  when  M  1 .  Moore  firsl 
entered  the  woods,  was  open,  the  entrails  had  di  ired,  a 

mass  ol  emi-liquid  corruption  occupying  t lei  1  place.  In 
another   pan    ol  the  woods,  aboul    sixt)  five   feel    distant,  the 

■  nd   leg    w ei e   found,  al  io   undei    a  1 f 

earth  and  leaves.     The  body,  with  tin'  limbs,      1    removed  '.<> 

the  turnpike,  placed  in  a   DOX,  and  linn  taken  to  '    Oi  aianviile 

At  the  ds,  and  at  Cochranville.  it  wa:    1     unined  by  Dr. 

Bailey   (more  critically  at   the  latter  place),  and   he  has  de- 


3 h  INSTRUMENTS    OF    EVIDENCE. 

stance,  the  nature  of  the  weapon  with  which  the  fatal 
blow  was  given,  is  of  the  utmost  importance  in  deter- 
mining whether  malice  existed  or  ought  to   be  pre- 

scribed  t<>  you  the  marks  he  found  upon  it.  lie  says  there  was 
an  opening  in  the  side,  between  the  third  and  fourth  ribs; 
another  he  thinks  between  the  fifth  and  sixth  ribs;  another  be- 
tween the  eighth  and  ninth  ;  and  that  these  opening  were  on 
a  line;  that  he  found  another  between  the  sixth  and  seventh 
ribs  (further  toward  the  back),  and  another  at  the  lower  part 
of  the  breastbone.  How  these  openings  or  holes  were  made, 
the  witness  is  unable  to  form  any  judgment,  inasmuch  as  de- 
composition had  probably  changed  their  form  when  he  saw 
them.  He  also  found  a  small  cut  on  the  left  side  of  the  neck, 
about  an  inch  above  the  collar-bone,  not  penetrating  deeper 
than  the  skin  ;  another  incised,  or  cutting  wound  commenc- 
ing on  the  left  side  of  the  neck  under  the  ear,  and  on  a  line 
with  it,  running  across  the  windpipe,  opening  it  in  two 
places.  Also  a  small  incised  wound  across  the  depression  of 
the  lower  lip,  not  through  the  skin ;  and  another  wound 
across  the  bridge  of  the  nose,  breaking  the  bones,  and  depres- 
sing them,  apparently  made  with  a  blunt  instrument,  about 
the  thickness  of  a  spade.  He  also  found  that  the  front  teeth, 
four  above,  and  four  below,  had  been  driven  back  into  the 
mouth — two  still  adhering  to  the  gum,  and  two  lying  loose 
upon  the  tongue.  * 

Dr.  Keeley  testifies  that  he  was  present  at  an  examination 
on  the  1 6th,  and  that  his  observations  of  the  body,  and  the  marks 
upon  it.  agree  substantially  with  those  stated  by  Dr.  Bailey. 

Dr.  Howard  testifies  that  he  made  an  examination  on  the 
18th  of  July,  refers  to  the  wounds  on  the  nose  and  the  mouth, 
and  says  the  blows  by  which  they  were  inflicted  must  neces- 
sarily have  been  very  severe. 

Now  were  these  the  remains  of  one  who  had  lost  his  life 
by  violen<  e  ? 

The  unusual  place,  and  the  unusual  manner  of  interment  ; 
the  mutilation  by  s<- .  ei  nice  of  the  limbs,  as  if  to  prevent  iden- 
tification, and  their  separate  concealment;  the  marks  upon 
the  body,  and  manifest  evidence  of  violence  about  the  neck, 
nose,  and  mouth  ;  the  bloody  shirt  found  in  the  grave,all  bear 
with  great  weight  upon  this  question. 

If  you  find  that  a  murder  or  homicide  of  any  grade  was 
committed,  you  will  next  pass  to  the  question,  Who  was  the 
man  so  killed  ?  The  commonwealth  says  it  was  Winfield 
Scott  Goss.     Wis  it  ? 


REAL     EVIDENCE.  315 

sumed  ;  on  charges  of  rape,  the  clothes  worn  by  the 
female  at  the  time  of  the  alleged  outrage,  torn  and 
stained,  or  untorn  or  unstained,  as  the   case  may  be, 

Winfield  Scott  Goss  resided  in  the  city  of  Baltimore,  and 
its  near  vicinity,  in  the  year  1S71,  and  the  early  part  of  1872. 
He  was  a  brother-in-law  of  the  prisoner.  Mr.  Barnitz,  who 
knew  him  intimately,  having  been  employed  in  the  same 
establishment  with  him  for  some  years,  describes  him  as  about 
five  feet  eight  to  nine  inches  in  height,  well-built,  with  an 
exceedingly  prominent  bust,  very  erect,  with  shoulders  thrown 
far  back,  his  form  full  and  in  every  way  well  developed,  with 
dark  eyes,  a  straight  nose,  round  full  face,  dark-brown  hair  a 
little  mixed  with  gray,  prominent  forehead,  and  good  teeth. 
Other  witnesses  similarly  describe  him — Mr.  Cat  »r  saying  that 
his  teeth  were  very  fine. 

He  had  procured  insurance  on  his  life,  in  several  different 
companies,  to  a  large  amount, — the  first  policy  hearing  date 
the  21st  day  ot  May,  1S6S,  ami  the  last  the  25th  day  of  Janu- 
ary, 1872. 

On  the  night  of  the  2d  of  February,  1S72,  a  frame  shop,  in 
which  it  is  said  he  was  engaged  in  gilding  pictures-frames, 
and  experimenting  with  a  substitute  for  india-rubber,  was 
found  to  be  on  fire.  After  it  was  consumed,  or  nearly  so,  the 
charred  and  blackened  remains  of  a  man  were  discovered  in 
the  cinders,    King  near    the  chimney,   which    was   about  the 

tre  of  the  building.  Goss  was  no  more  seen  in  the  neigh- 
borhood; and  on  the  22d  day  of  the  same  month  in  which 
the  fire  occurred,  his  wife  made  application  to  the  insurance 
1  mpanies  for  payment  of  the  sum  in  ;ured  on  his  life.  This 
.  she  commem  ed  suits  against  them,  the  prisoner 
appearing  as  a  u  in  her  behalf. 

Were  the  remains  found  in  the  fire  those  of  Goss?  If 
they  were,  1  hen  ot  course  those  found  in  the  woods  could  not 
be  i 

I  hat  '  •  nt  to  the  building  some  time  during  the  day 

preceding  the  fire  ia  clear.  Joseph  Loudenslayer  (the  com- 
ment •  on  who  e  te  timony  you  will  r<  membei  I  saj  he  saw 
G  mpany  wit  h  t  he  pi  isonei .     tart  on  the  aftei  not  >n 

of  that    day   from   the  city,  for  this  building;  that   they  took 
th  them  a  :  »ur  to  five  feet  long,  about   fifteen   inches  in 

depth  and  width,  <  ontainit  the  pri  on<  1  alii  g<  d,  ma<  Inn- 

er y  for  Go        1  iboratory.     I  ■         I  ngle  t<  that  the  pi 

oner  and  Gottlieb  Englecame  to  hi  ■  father's  hou  e  (a  hort  dis- 
tance from  the  shop),  alter  duk,  sa)  ing  the  lamp  at  the  shop  had 


316  WS  TR I  rMEN IS    l  U>     E 1 7DENCE. 

afford  .1  strong  presumption  for  or  against  the  charge. 
But  physical  coincidences  and  dissimilarities,  often  of 
a  most  singular  kind,  frequently  lead  to  the  discovery 

ne  out,  ami  desiring  another  to  take  over  ;  that  they  did  not 
start  back  immediately,  but  (in  the  language  of  the  witness) 
"stopped  about  the  house  alter  the  lamp  was  ready;"  and 
while  still  there,  the  prisoner  went  to  the  door  to  empty  a 
tumbler  or  dipper,  from  which  he  had  been  drinking,  saw  the 
fire,  and  gave  the  alarm  ;  that  he,  the  witness,  the  prisoner, 
and  Gottlieb,  ran  over — the  prisoner  and  Gottlieb  falling  a 
little  behind  ;  that  when  he  reached  the  shop  it  was  in  flames, 
and  not  long  alter  the  roof  and  upper  part  fell  in;  that  he 
saw  no  attempt  to  enter  the-  building,  or  arrest  the  fire;  that 
he  heard  no  suggestion  that  any  one  might  be  inside,  until  the 
building  was  burned  nearly  down,  when  the  prisoner  came 
and  requested  him  to  go  to  Baltimore,  and  inform  Goss's 
family  of  the  fire,  and  that  Goss  was  missing.  Sarah  .Moore 
(the  colored  woman  called  by  the  defense)  testifies  that  she 
was  living  at  the  time  of  the  fire  one  hundred  yards  from  the 
shop;  that  having  occasion  to  go  to  her  door,  she  saw  Goss 
outside  the  shop,  with  ;i  light  in  his  hand;  that  it  was  dark, 
and  she  did  not  see  him  in  front,  but  observed  his  side-face  as 
he  passed  in,  and  heard  him  lock  the  door;  that  she  then  sat 
down  to  her  supper,  and  soon  after  finishing  it,  discovered  the 
shop  to  be  oii  lire. 

Mr.  Smith  testifies  that  he  reached  the  fire  when  the  build- 
ing was  all  in  Ihimes;  that  he  heard  Mr.  Cator  complaining 
to  the    prisoner  for   not   giving  the   alarm   before  the   fire  had 

tten  so  far,  if  he  supposed  anybody  to  be  within  the  build- 
ing, asking  him  if  he  desired  to  createa  false  alarm  by  saving 
that  Goss's  body  was  in  the  flames,  and  that  the  prisoner 
replied  he  was  unacquainted  with  anybody  about  the 
place. 

1  lie  witness  says  he  then  went  nearer  the  fire,  and  pro- 
curing the  assistance  of  Martin  Quinn,  found  a  body,  and 
succeeded  in  dra  ^gingitout  of  the  flames;  seeing  the  prisoner 

tin  in  tin-  crowd  he  asked  him  if  he  was  going  to  leave  the 
corpse  there  like  that  of  a  dog,  while  claiming  it  to  be  the  re- 
mains ot  his  brother,  upon  which  the  prisoner  turned  his 
back  and  made-  a  noise  as  if  crying.  The  corpse  was  then 
laced  in  a  bo*,  and  taken  to  Mr.  Lowndes's  stables,  vv!  ■•re  it 
.vas  left  for  the  night.  The  next  morning,  this  witness  ■  ivs, 
he  went  to  the  s<  ene  of  the  fire  as  early  as  it  was  lighl  enough 
to  see,  and  sought  among  the  ashes  for  Goss's  watch  and  ring, 


RE  A  L    E  J  TIDENCE.  3 1 7 

of  the  perpetrators  of  offenses,  or  establish  the  inno- 
cence of  parties  wrongly  accused.  Several  instances 
of  the  former  are  given  in  Starkie   on   Evidence,  (x) 

(x)  I   Stark.   Ev.  562,  3rd  ed.  ;  844,  4th  ed. 

finding  nothing  but  a  melted  bottle,  part  of  the  door  lunge,  and 
a  few  small  bones. 

From  the  body  the  hands  and  feet  were  off ;  the  skin  was 
burned  crisp,  and  blackened;  identification  by  means  of  the 
features  and  expression  was  impossible.  Mrs.  Goss  testified 
that  the  corpse  was  brought  home  in  the  evening  of  the  day 
following  the  lire;  that  she  identified  it  as  that  of  her  hus- 
band. She  says,  however,  she  judged  only  by  the  si/e  and 
shape  of  the  head,  the  neck,  and  bod)  ;  that  in  these  respects 
it  resembled  him.  This,  it  must  be  observed,  falls  short  of 
identification  —  which  can  oiilv  result  from  observing  some 
mark  by  which  the  individual  may  be  known,  or  the  peculiar 
expression  formed  1>\-  the  features  of  the  face.  Mr.  Arden, 
the-  step  father  of  Mrs.  Goss,  who  saw  the  corpse,  also  testi- 
fies that  he  observed  the  same  resemblance  to  Goss  in  the 
head,  neck,  and  bocy.  M  rs.  Arden,  the  mother  of  Mrs.  Goss, 
says  the  body  could  not  be  re<  ognized,  by  reason  of  its  con- 
dition, but  that  the  shape  of  the  head  and  body  resembled 
those  of  Go  Mr.  Smith,  before  referred  to,  says  the  body 
when  taken  from  the  lire-  by  him  was  not  susceptible  of 
recognition;  but  thai,  for  the  rea  ons  which  he  states,  the 
though!  o<  1  meed  to  hi  i  mind  that  it  was  the  body  of  a  female 
Dr.  Howard,  however,  dispels  this  suspicion.  Me  testifies 
that  about  one  year  after  tic  lire  he  made  a  1  areful  examina- 
tion of  this  body  and  found  it  to  be  th.it  of  a  man,  of  about 
five  feet  eight  to  ten  inches  in  height,  with  full  chest,  and 
shoulders  t hrown  back. 

This  witness  further  says,  thai  upon  :i  i  ritical  examination 

of  the    mouth,  he    found  thai     one  I1.1H    'he  teeth   had  been   lot 

many  months,  al  leasl  before  death — -two  pi  them  directly  in 
front,  one  being  from  the  upper  and  'he  other  from  the  lowei 
jaw.  This  fitter  statemenl  is  important  when  considered  in 
connection  with  thai  ol  the  witne  ies  who  have  described 
( •■  •    '    teel  h  ;i s  regular  and  li m  . 

On  the  day  pie.  eding  tic-  foe  it  i  .  t *  stified  th.e  t  ross  drew 
out  ot  bank  the  balance  standing  in  his  favor,  and  his  ^.ccouni 
there  <  losed. 

We  now  repeat  the  question :  Was  this  his  body  found  In 
the   fire?     It    the  inquiry   stopped  here  it  might  be   unsafe  ti 


318  INSTRUMENTS    OF    EVIDENCE. 

Tluis,  in  a  case  of  burglary, — where  the  thief  gained 

admittance  into  the  house  by  opening-  a  window  with 

a  penknife,  which  was  broken  in  the  attempt, — part  of 

conclude  that  it  was  not.  But  it  does  not  stop  here;  there  is 
other  evidence  bearing  upon  the  question,  of  a  highly  im- 
portant character.  On  the  22d  day  of  June  followingthe  fire, 
and  while  the  suits  referred  to  were  pending,  a  man  presented 
himself  at  the  house  of  David  Mullin,  in  Coopertown,  asking 
to  remain  as  a  boarder,  and  giving  his  name  as  A.  C.  Wilson. 
Mr.  Mullin  says  he  remained  until  the  1 6 til  (lav  of  the  next 
November,  when  he  left  for  Athensville,  about  two  miles  dis- 
tant. Here  he  remained  one  week,  and  then  left,  appearing 
at  Mrs.  Toombs's  boarding-house",  in  Newark,  on  November 
29th,  where  lie  remained  nearly  seven  months.  The  witnesses 
who  saw  this  man  at  Coopertown  and  in  Newark,  describe 
him  as  stoutly  built,  five  feet  eight  to  nine  inches  in  height, 
full  chested,  shoulders  thrown  back,  with  dark-brown  hair  a 
little  mixed  with  gray,  good  teeth,  full  broad  forehead,  and 
having:  when  in  Newark  moustache  and  side  whiskers.  The 
witnesses  do  not  all  precisely  agree  in  describing  his  features, 
but  unite  as  regards  his  general  appearance,  and  in  saying 
that  his  face  was  fine. 

Several  witnesses  also  state  that  he  had  a  habit  of  drinking 
to  excess,  as  (»oss  is  said  to  have  had 

These  witnesses  further  testify  that  he  carried  on  some 
correspondence  with  Baltimore,  where  Goss  had  resided — 
sending  letters  and  packages,  and  receiving  others  in  return. 
One  witness,   Michael   Olrey,  being  acquainted  in  Baltimore, 

tified  that  1m-  conversed  with  Wrilson  about  mutual  ac- 
quaintances residing  there. 

It  is  clear  he  knew  the  prisoner,  for  he  received  a  visit 
from  him  while  at   Newark. 

A  pair  of  pantaloons,  which  several  witnesses  recognized 
as  Wil  k-ft   behind   when   quitting   Newark — have  been 

exhibited.  They  are  darned  in  the  seat,  and  are  thus  identi- 
fied. Mrs.  Toombs  says  she  noticed  that  they  were  very  short 
for  him.  Lewis  Engle  testifies  that  when  Goss  boarded  in  his 
father's  family,  near  Baltimore,  during  the  summer  or  fall 
preceding  the  fire,  he  had  such  n  pair  of  pantaloons  as  those 
exhibited;  say-,  he,  the  witness,  assisted  Mrs.  Goss  to  wash 
them,  that  he  noticed  the  color,  the  cordon  the  side  of  the 
leg,  and   also   ob  I   that    they   were   short   for  Goss  when 

worn 

It  is  further  shown  that  this  man  wore  a  large  blood-stone 


REAL     EVIDENCE.  319 

the  blade  was  left  sticking  in  the  window   frame,  and 

a  broken  knife,  the  fragment   of  which  corresponded 

with  that  in  the  frame,  was  found  in  the  pocket  of  the 

ring,  such,  in  general  appearance,  as  the  one  exhibited  here 
Some  of  the  witnesses  testify  that  they  recognize  this  as  the 
same.  Engle  testifies  that  Goss  had  a  similar  ring,  being  in 
all  respects  like  this  ;  that  he,  the  witness,  wore  it  sometimes 
and  that  he  believed  this  to  be  the  same;  while  Mrs.  Goss 
who  describes  her  husband's  ring  as  being  of  about  the  same 
size  and  of  the  same  general  appearance  as  this,  savs  it  was. 
according  to  her  recollection,  in  some  respects  different. 
Whether  it  is  possible  tor  any  of  the  witnesses  to  recognizo 
the  ring  fully,  so  as  to  swear  to  its  identity,  is  tor  you  to  de- 
termine. It  would  seem  to  the  court  safer  to  conclude  that 
the  ring  worn  by  Goss  at  Engle's,  and  that  seen  on  the  man 
known  as  Wilson,  were  alike  in  size,  shape,  material,  and 
general  appearance. 

A  frock  (cat  is  produced  which  Mrs.  Toombs  identifies  as 
a  coat  worn  by  Wilson,  and  left  behind  when  quitting  her 
house.  On  this  coat  being  exhibited  to  Mr.  Heins,  a  tailor 
residing  in  Baltimore,  he  testifies  that  he  made  one  in  all 
I--  pects  like  it,  being  of  precisely  the  same  measure,  tor 
'-  »SS ;  that  while  he  cannot  describe  to  you  how  he  recog- 
nizes his  own  work  upon  this  coat,  he  tells  you  that  lie  be- 
lieve, he  does. 

Il  is  shown  by  several  witnesses  that  Goss,  while  ],,  l!;ilti- 
more,  had   in   Ins   |  ton   what   is  called  a  double  ratchet 

screw-driver,  very  peculiar  in  its  construction,  and  claimed  to 
be  his  own  invention.  It  is  further  shown  that  the  man 
calling  himsell  Wilson  had  a  wooden  model  of  this  same 
screw-driver,  which  he  claimed  to  have  invented, 

Lewi  Engle  te  tifies  thai  when  Goss  boarded  at  their 
house,  near  Baltimore,  he  saw  him  and  Udderzook  a  good 
deal  together,  and  thai  <•■>  frequently  called  Udderzook 
"Doctor."  Several  ol  the  witnesses  who  saw  Udderzook  and 
the  man  called  Wil  on  togethei  al  Newark,  testify  thai  Wil- 
son  called    Udderzook   "D  Th         tificance  <>i    the  hi  1 

two  mentione  1  1  ircumstam  e  ■  1  anno)  be  overlooked. 

And  now,  following  this  evidence,  designated  i"  show 
similarity,  in  per  on  and  apparel,  in  the  habit  of  intempei  nice, 
po  e  ion  ol  the  s  rew-driver,  and  in  the  appellation  or  title 
u  ed    when    addi  ■     Udderzook,   the  commonwealth    has 

undertaken  to  prove  the  a<  tual  identity  ol  Wilson  a  ■  Goss,  by 
exhibiting  the  photograph  ol  G  1     to  the  witn<     1     who  were 


32o  INS  TR I TMEN  J'S    <  >F    E  l  WENCE. 

prisoner.     So,   where  a  man  was  found  killed    by   a 

pistol-shot,  and  the  wadding  in  the  wound  consisted 

of  pari  of   a    ballad,  the   corresponding   part  of  which 

familiar  with  Wilson,  some  of  them  having  been  his  room- 
mates in  the  boarding-house.  Were  it  possible  to  produce 
(loss  himself  before  these  witnesses,  as  he  appealed  in  life, 
they  could  tell  us,  doubtless,  whether  he  is  the  same  man  who 
was  known  to  them  as  Wilson;  and  their  judgment  should  be 
the  highest  and  best  source  of  information  on  the  subject. 
A-  Goss  cannot  be  so  produced,  probably  the  next  best  means 
of  judging  of  his  identity  with  Wilson  is  obtained  by  pro- 
ducing his  photograph  (if  it  be  a  perfect  one),  and  allowing 
these  witnesses,  whft  were  familiar  with  Wilson,  to  base  their 
judgment  on  it.  The  picture  is  of  course  a  much  less  satis- 
factory means  of  judging  than  the  presence  of  the  individual 
would  be;  because  it  shows  the  face  in  a  state  of  repose,  not 
very  frequently  observed  in  the  individual  ;  and  showing  it 
on  a  much  smaller  scale,  the  expression  is  less  distinct.  Still, 
where  a  photograph  is  perfect,  it  shows  an  exact  likeness  to 
the  extent  presented,  and  can  generally  be  recognized  with 
great  ease  by  those  familiarly  acquainted  with  the  individual. 
The  photograph  exhibited  here  is  shown  to  be  that  of  Goss. 
Some  of  the  witnesses  who  knew  the  man  called  Wilson,  say 
this  looks  like  him  ;  that  the  shape  of  the  forehead  and  face  is 
like  his,  but  they  do  not  recognize  the  picture.  Their  testi- 
mony must  not  be  over-estimated.  It  goes  no  further  than  to 
show  resemblance.  Other  witnesses,  more  familiar  with  this 
man.  particularly  some  of  those  who  boarded  in  the  same 
hou^e  with  him,  say  they  recognize  Wilson  in  the  picture; 
one  saying  lie  "sees  the  man  in  it;  "  others  "it  is  him;"  and  so 
on,  in  varied  language  expressing  the  same  thought. 

loo  much  importance  should  not  be  attached  to  the  fact 
that  the>e  witnesses  were  not  able  to  point  out  any  particular 
feature  by  which  they  recognize  the  picture  as  his.  If  asked 
to  point  out  the  feature  or  features  by  which  your  most  inti- 
mate friend  is  distinguished  from  others,  you  probably  could 
not  do  it.      Were  vou  to  refer  to  the  size  of  his  head,  shape  of 

fa   ■  .  no  e,  or   mouth,  you  would   doubtless  find  that  in  all 
e  is   not  singular.      But  you  recognize  him  in- 
stantly, and  with  absolute  certainty,  by -his  peculiar  expression, 
the  combined   effect  of  all   his  features  and  his  mind.     And 
this  you  cannot  describe,  for  words  will  not  do  it. 

In  determining  the  weight  to  be  attached  to  the  testimony 
of    the    witnesses,      who    say    they    recognize    Wilson    in    the 


RE  A  L     E  J 1  DUNCE.  32 1 

was  found  in  the  pocket  of  the  prisoner.     In  another 

case  of  murder,  a  patch  on  one  knee  of  the  prisoner's 

!  reech.es,  was  found  to  correspond  with  an  impression 

picture,  or  recognize  the  picture  as  his,  it  is  important  to  re- 
member that  when  they  knew  him  his  beard  was  different. 
What  effect  the  change  of  beard  would  have  on  the  expression 
and  appearance  of  the  picture,  you  will  judge.  You  will  also 
bear  in  mind  the  comments  of  the  defendant's  counsel  on  this 
testimony,  and  the  fact  that  the  prisoner's  sister,  who  saw 
Wilson  at  Mr.  Mullin's,  says  she  docs  not  see  any  likeness  to 
him  in  this  photograph. 

/The  commonwealth  lias  further  undertaken  to  show  that 
Goss  and  this  man  wrote,  not  only  a  similar  hand,  but  the 
same.  In  this  connection  Emma  Taylor  testifies  to  the  re- 
ceipt of  many  letters  or  notes  from  Wilson,  and  a  knowledge 
of  his  handwriting.  Two  letters — one  of  them  addressed  to 
Mr.  Mullins  signed  A.  C.  Wilson — being  exhibited  to  her,  she 
says,  in  her  judgment,  they  are  his  handwriting.  On  being 
shown  anotln  r  letter  signed  W.  S.  Goss,  and  testified  by  Mr. 
Butler  (as  he  believes)  to  be  in  Goss's  handwriting,  she  says, 
in  her  judgment,  this  is  the  handwriting  of  Wilson.  This 
witness,  however,  as  you  will  remember,  did  not  exhibit  such 

urate  knowle  Ige  of  Wilson's  handwriting  as  to  render  her 
judgment   in    regard   to  ii  very  reliable;  and    what   she  says 

wild  therefore  be  re<  eived  with  great  caution. 

John  W.  Butler  testifies  that  Ik:  knew  Goss  intimately,  and 
con  i  with  him  some  years  ago;  thai  he  knew  his 
handwriting  very  well,  and  believes  himself  able  to  recognize 
it.  The  letter  signed  W.  S.  Goss  (before  mentioned)  being 
shown  him,  he  answered,  "  1  believe  this  to  be  Goss's  hand- 
writing." 'I  he  two  letters  signed  .\.('.  Wilson  (also  before 
mentioned),  beii  »wn  this  witness,  he  an  d  thai  the 
writing,  in  his  judgment,  was  thai  ol  Go  [\he  signature 
ot  A.  (  Wil  .11,  on  the  regi  ter  of  the  Central  Hotel  in  Phil- 
adelphia,   under   dale    of ,    being    shown    the    witness,    he 

thai   he  would  take  this  to  be  written   by  Goss,  as 

■  lure  on  the  n     *  ■       oi  the  William  P<  an  I  [otel, 

though  in  t  to  the  e     ing  [e  signal  no      !,;     ju  Igmenl   Is 

distinct  than  that  expressed  in  n  to  tin-  letters.     The 

int'  ted  by  this  \vitn<  well  ;,  ,  the  caution 

ed  in  expre  sing  his  judgment,    hould  be  considered   in 

imating  the  \  dm-  1  a  hi  mony. 

I  ranklin  Mills  te  tified  thai  in-  knew  the  man  called  Wil- 
son, and  upon  01  ion,  when    sitting  at   his   side,  discov- 

21 


322  INSTRUMENTS    OF    EVIDENCE 

made  in  the  soil,  close  to  the  place  where  the  mur- 
dered body  lav.  In  a  case  of  robbery,  the  prosecutor, 
when  attacked,  struck  the  robber  on  the  face  with  a 

"ered  a  small  scar  running  up  into  his  hair  on  the  side  ol  his 
forehead  that  he  had  never  noticed  it  before.  Mrs.  Goss 
►.estified  that  her  husband  had  no  scar  upon  him.  You  have 
heard  the  comments  of  counsel  in  respect  to  this,  and  will  de- 
termine what  weight  the  contradiction  should  have, — hut  in 
doing  so  will  remember  that  Mr.  Mills  speaks  of  the  man 
moie  than  a  vear  after  Mis.  Goss  had  last  seen  her  husband. 

Now  was  this  man,  called  Wilson  at  Coopertown  and 
Newark,  Winfield  Scott  Goss,  under  an  assumed  name? 

If  he  was,  you  will  judge  whether  the  conclusion  is  not 
reasonable,  that  he  had  entered  into  a  scheme  to  obtain  money 
fraudulently  from  the  insurance  companies;  and  that  the 
burning  of  his  shop  was  a  part  of  this  scheme.  It"  you  reach 
this  conclusion,  a  reason  will  be  found  for  his  appearance  in 
Pennsylvania  and  New  Jersev  under  an  assumed  name. 
Still  if  you  find  this  man  was  Goss  under  an  assumed  name, 
you  will  have  made  but  a  step  towards  finding  that  the  re- 
mains discovered  in  the  woods  were  his. 

But  now  (if  this  was  Goss)  we  find  him  in  Newark  on  the 
evening  of  the  25th  day  of  June,  sixteen  days  preceding  the 
discovery  in  the  woods.  He  then  started  for  Philadelphia 
Mrs.  lOombs  testifies  that  three  days  later,  he  wrote  to  her 
from  Philadelphia,  under  date  of  the  28th.  Francis  Jacobs 
testifies  that  he  is  clerk  and  bar-tender  at  the  William  Penn 
Hotel,  in  Philadelphia;  that  in  the  forenoon  of  tin-  26th  (the 
day  after  this  man  left  Mrs.  Tombs)  a  man  came  to  the  hotel, 
representing  himself  to  be  A.  C.  Wilson,  and  registering  this 
as  his  name.  The  witness  describes  him,  and  being  shown  the 
photograph  exhibited  here,  says  it  looks  like  this  man.  He  is 
unable  to  describe  any  other  stranger  who  called  about  that 
time  or  since,  and  says  he  did  not  recognize  the  resemblance 
in  the  photograph  until  told  whose  it  was.  You  will  judge 
whether  this  witness  can  truly  describe  the  man  as  he  under- 
takes I  and  whether  he  does  see  the   resemblance  in  the 

;ure  to  which  he  testifies.  That  a  man  came  to  the  hotel 
representing  himseVf  to  be  A.  C.  Wilson,  that  the  witness  saw 
him  register  his  name,  that  he  stayed  till  the  next  day,  that 
the  prisoner  visited  him,  occupying  the  same  room,  and  went 
away  with  him,  the  witness  is  positive.  The  register  is  pro- 
duced, and  the  name  of  A.  C.  Wilson  appears  upon  it;  and 
this  signature,  as  we    have    seen,   Mr.    Butler   expressed    the 


REAL    EVIDENCE.  323 

key,  and  a  mark  of  a  key  with   corresponding  wards 

was  visible  on  the  face  of  the   prisoner.     Mascardus 

also  relates  an  instance,  where  an  inclosed  ground  set 

judgment  is  in  the  handwriting  of  Goss.  If  the  witness  is 
believed,  it  was  on  the  morning-  of  the  2 7 th  that  the  prisoner 
;ind  this  man  left  the  William  Penn.  Where  they  went  at  that 
time  does  not  appear. 

On  the  evening  of  the  following  day,  the  prisoner  was 
seen  upon  the  train  at  Wilmington,  by  Mr.  Hodgson,  who 
rode  with  hipi  to  Philadelphia.  (We  do  not  observe  any  con- 
flict between  the  testimony  of  Mr.  Hodgson  and  that  of  Mr. 
Jacobs,  because  we  do  not  see  any  inconsistency  between  the 
facts  to.  which  they  speak.)  Two  days  later,  Francis  Pyle, 
who  lives  near  West  Grove,  in  this  county,  testifies  that  the 
prisoner,  in  company  with  another  man,  came  tc  his  place. 
He  says  he  had  known  the  prisoner  formerly,  and  recognized 
him.  Mrs.  Pyle  and  the  little  boy  Elmer  Pyle,  also  saw  the 
men  there,  and  say  they  recognize  the  prisoner  as  one  of 
them.  Mr.  Pyle  and  the  boy  describe  the  appearance  and 
parts  of  the  dress  of  the  other,  referring  to  his  build,  his 
whiskers  and  moustache.  Mrs.  Pyle  saw  but  little  of  him  and 
was  not  very  near.  Mr.  Pyle  says  he  wore  gaiters  like  those 
shown  here,  and  had  a  ring  on  his  finger.  Upon  being  shown 
the  photograph,  he  says  it  looks  like  a  picture  of  this  man. 
The  son  also,  in  addition  to  the  general  description,  says  this 
man  u  liters;  had  eye-glasses,  and  thai  when  they  were 

the  cherry  tree,  he  called  the  prisoner  "  Doc- 
tor." 'Jhis  hist  circumstance,  if  true,  is  very  signif. cant,  lot- 
as we  have  Been  (il  the  witne  se  are  believed),  this  is  the 
same  appellation  by  which   (ioss  in    Baltimore,  and   the  man 

ling  himself  Wilson  in  Newark,  addres  ed  LJddertook. 

I  1  <  .111  Mr.  Pyle's  place  these  men  wenl  in  the  direction  ol 
Jennerville.     In    the  evening   ol  the      one  day,  Mr    [efferis, 
Mrs,    f  efferis,  and   Mr.  rownley,  testify  that  the  prisoner,  with 
anothei  man,  appeared  al  the  hotel  ol   Mr,  Jefferis,  in  Jenner- 
ville.    These  witnei   es  recognize  the  ilso 
Mr,  W'ali.e  e,  who    a,w  him  there,  and  had  known  him  I 
They  describe  the  other  man  as  about   five  feel   eighl   to  nine 
inches  in   height,   good-looking,   full-breasted,  straight,  with 
shoulders  throw, 1   back,   mou  tache   and    side   whisker!    ol  a 
dark  color;   Mrs.  Jeffei        tying  thai    he,  at  the  time,  thought 
he  was  the  straighte  I   man    she  had   ever    seen.     On    b< 
shown  the  photograph  before  referred  to,  these  witn 
say  the  picture  re    ml               man.     The  next  morning,  being 


324  INSTRUMENTS    OF    EVIDENCE. 

with  fruit  trees  was  broken   into  by  night,  and  several 

Bruits  eaten,  the  rinds  and  fragments  of  some  of  which 

were  found  lying  about.     On    examining  these,  it  ap- 

the  first  of  June,  it  is  shown  (if  the  testimony  is  believed) 
that  the  prisoner  obtained  a  horse  oi  Mr.  Patchell  living  near 
by,  and  visited  his  brother-in-law,  Samuel  Rhoad.es,  who  re- 
sides a  short  distance  from  Penningtonville. 

Here  he  was  recognized  by  Mr.  Rhoades  and  his  wife,  who 
is  the  prisoner's  sister.  They  testify  that  he  spoke  of  the  man 
he  had  left  behind  at  Jennerville,  and  Mr.  Rhoades  says  he 
described  him  as  a  man  "  having  no  one  to  look  after  him, 
wh<>  had  been  lost  for  a  long  time,  and  was  supposed  by  every- 
body to  be  dead,  one  whom  the  prisoner  had  had  at  New- 
ark or  New  York  (the  sound  being  so  much  alike  that  the 
witness  is  not  certain  which),  and  Philadelphia."  The  bear- 
ing "I  this  description  upon  the  identity  of  the  man  left  behind 
is  most  important.  You  will  judge  whether  it  does  or  does 
not  describe  Goss,  and  the  man  known  at  Newark  as  Wilson, 
with    great    certainty :  "  Lost  for  a   long  time,  supposed  by 

rybody  to  be  dead,  whom  he  (the  prisoner)  had  had  at 
Newark     .   New  York,  and  Philadelphia." 

On  I  le  (  vening  of  the  same  day,  the  prisoner  having  hired 
a  carriage  and  horse  at  Penningtonville,  went  to  Jennerville, 
i  man  he  had  left  there  in,  and  started  back.     When 

be  I  Penningtonville  in  the   night  this  man  was  gone, 

and  was  no  more  seen  alive.  Baer's  Woods  is  by  the  road- 
side Were  the  remains  found  there  his?  The  last  time  seen 
ing  in  that  direction.  If  Mr.  Rhoades  is  believed, 
the   prisoner    had    contemplated    leaving    him    in    the  woods 

newhei  i 

When  the  remains  were  first  uncovered,  Mr.  Moore  testi- 
fies  that  the  face  was  white  and  natural;  says  he  looked  to 
iu  whether  he  could  identify  it,  and  believed  at  the 
time,  and  docs  still,  that  he  could  if  he  had  known  it.  On 
I  mown  the  picture  before  referred  to,  he  says  it  bears  a 

to  thai  This,  standing  alone,  would  be  of 

1  because   of  its    uncertainty.     But   Mr.   Moore  and 

Others  who  saw  the  remains  that,  evening  and  the  next  day, 
•  the  tipper  lip  presented  the  same  appearance  as  the  cheeks 
did  where  the  whiskers  came  off,  on  being  touched,  showing 
*,i:it  '■'  had  worn   a   moustache  with  side  whiskers;   that 

his  hair  was  dark-brown,  a  little  mixed  with  gray;  and  Dr. 
Howard,  as  well  as  all  the  witnesses  who  examined  the  re- 
mains with  care,  says  the  forehead  was  square  and  straight, 


RE  A  L    E  VIDENCE.  325 

pcarcd  that  they  had  been  bitten  by  a  person  who  had 

lost  two  front  teeth ;  and  this  caused  suspicion  to  fall 

on  a  man  in  the  neighborhood,  who  had  lost  two  front 

the  face  fine,  chest  full,  shoulders  well  thrown  back,  the  person 
very  erect,  and  teeth  regular  and  good.  Yon  will  judge 
whether  this  is  or  not  an  accurate  description  of  the  man  we 
na\e  been  following.    A 

In  the  same  grave  a  shirt  was  found.  It  is  not  identified, 
for  there  are  no  marks  upon  it  by  which  to  distinguish  it  from 
others.  There  are  many  such,  as  Mr.  Crockett  testifies,  but 
this  witness  says  lie  sold  a  shirt  in  all  respects  like  this  in 
Newark  to  a  man  called  Wilson,  as  he  was  informed;  and 
Mrs.  Toombs  testifies  that  Wilson  had  such  a  shirt,  showing 
another  point  of  resemblance. 

Then  again  a  pair  of  Congress  gaiters  were  found  upon 
the  feet  resembling  those  worn  by  the  man  we  have  been  fol- 
lowing'. But  a  more  remarkable  and  striking  resemblance 
still  is  found  in  the  fact  that  this  man's  gaiters  were  marked 
No.  8,  on  the  inside,  near  the  top  (if  Mrs.  Toombs  is  believed, 
of  which  you  will  judge),  and  had  recently  (as  Mr.  Sduriq 
testifies)  been  half-soled;  and  that  the  gaiters  found  on  these 
remains  exhibit  a  similar  number,  in  the  same  place,  and  a 
similar  condition  in  respeel  to  the  soles. 

Now  you  will  determine  whether  these  are  the  remains  of 
the  man  we  have  been  following.     If  they  are,  and  this  i»an 
1  .       .  then  'lid  lie-  1 11  i  soner  take  his  life  ? 

In  starting  upon  this  inquiry  the  first  thought  that  prments 
it  '-if  is,  had  tl  oner  an v  motive  to  commit  1  he  crime ? 

If  the  remains  are  those  <>t  Goss,  you  will  judge,  as  oefore 
remarked,  whethei  In-  \\,\^\  not  entered  into  a  scheme  i"  de- 
fraud the  insurance  companies,  by  hiding  himself  from  the 
world,  and  endeavoring  to  <  reate  the  belief  that  he  w  is  dead, 
And  if  he  had  entered  into  sn<  h  a  scheme,  you  \\  il >  further 
judge  whether  the  conclusion  is  or  is  not  reasonable  chat  the 
prisoner  had  also  entered  into  it.  For  it  would  fohow  thaf 
while  Goss  was  thus  alive  under  an  assumed  name,  and  while 
the  pri  soner  knew  thi  >,  foi  (a<  1  ording  to  the  te  timony  a  we 
have  seen)  he  visited  him  at  Newark  on  the  nth  oJ  May,  he 
appeared  as  a  witness  on  the  28th  day  ol  the  same  month  to 
prove  his  death,  not,  il    is  true,  by  swearing  direct  1)  thai   he 

.  but    b  iring  t"  circum  tan<  e     from  whi<  h 

sought  to  1  reate  that  impression.  It  it  is  true  that  the  pris- 
on* 1  had  unit'  d  in  su'  h  a  .■  heme,  it  was  vet  y  important  to  him 
that  the  existence  of  G  >uld  not  1  ome  to  light ;  lor  il  it 


/.YS  TRl  'MEN  TS    ( )1:    EVIDENT  E, 

teeth,  and  who,  on   being  taxed   with   the  theft,  con- 

;ed  his  guilt,  (y)      In  some  cases,  also,  the  fact  of 

the  accused  being  left-handed  becomes  an  adminiculum 

(_i  i  Masi  ard.  de  Prob.  Qusest.  S,  n.  28. 

.  not  only  would  the  scheme  fail,  but  the  prisoner  become 
liable  to  prosecution  for  conspiracy  and  perjury.  And  if  you 
find  such  motive  for  the  concealment  of  Goss  existed,  von 
will   judge  whether  his  disappearano    from  the  neighborhood 

in    which  he  was  known,  and  his  reported  death,  did  not  in- 
vite to  the  commission  of  the  crime  here  charged,  by  reason 
the  immunity   from  discovery   which   these    circumstances 
tended  to  afford. 

Still    a  motive   to  commit  the    crime,  and  such  op]  ortunity 
to  gratify  it.  would   be  of  no  consequence,  in  the  absence  of 
evidence  that   the  prisoner  did  commit  it.     Then  what  is  the 
dence  that  he  did  ? 

It   the  remains  found  in  the  woods  are  thos<      f  the  man  we 

have  been  following,  and  that   man   was  Goss,   then  we  have 

found  the  prisoner  and  Goss  together  on  the  first  day  of  July. 

the  evening  of   this  day,  as  we   have  seen,  the  prisoner 

visited  his  brother-in-law,  Samuel  Rhodes,  whose  testimony  I 

will    now   turn   to   and    read:    "The    prisoner   came  down  to 

•     ere    1  was  at  work  between   one  and  two  o'clock  ;   lie  said  it 

■•  irm  ;    he  had    written    me  a  letter,  and  as  soon  as  I  saw 

him  1  thought  of  the  letter;  as  soon  as  I  saw  him  I  asked  him 

►ut  that  letter;  after  he  spoke  to  me,  I  said  1  wrote  back  in 

answer   to  his    letter  to    know    what  it    was,  and   that    I  got  no 

answer.     No,  he  said,  I  couldn't  write  any  more,  and  it  had  to 

be    by    word    of    mouth;     however,    he   says,  it  is  just  as  good 

v,  and  better,   if  anything;  he  says  it  is  a   sure  thing  for 

00  api  lie  then  said,   it  is  warm;   let  us  go  up  to  the 

•   ;   we    walked    up   and   sat   down   along  the  edge  of  the 

d   in  the  shad'-,  and  I  asked  him  what  it  was;   he  says,  have 

e?      1  said  yes;   he  says,  have  you  got  a  wagon 

that    will    hold   three?      I    said  yes;     I    believe  1   said  I  had  no 

but  I  could  get  one;    I  asked  him  when  we  would  get 

poke  and    wrote  of;   he  says    we  will  get  $500 

.   right  away;   he  said  there  was  more  money   we  would 

;   he  began  to  say  something  about  it  and  stopped  ;   he  said 

larantee   me  §1,000  anyhow;    I  asked  him  what  it 

was;    he     lid    it  was  a  man  that    was  drinking  and   spending 

>r   no  good;  he  said  he  had  the  "poker"twoor 

three  times  since  he  had  been  with  him;  he  said  he  had  about 


RE  A  L     E 1 7DENCE.  327 

of  evidence  against  him,  i.  e.  when  surrounding  circum- 
stances show  that  the  offense  must  have  been  perpe- 
trated by  a  left-handed  person.  (z)     Few  things  have 

(2)  See   ihs  Case  of  William    Rich-      Case,    Dick,    Med.    Jurispr.    5S3,    7th 
ardson,  Appendix,  No.  I.;  and  Patch's      ed. 

§r,ooo  with  him,  he  was  certain,  for  he  had  been  drawing  his 
money  through  him;  he  wanted  me  to  hitch  up  and  go  fight 
with  him  to  Jennerville,  and  get  this  man  in  and  take  him  to 
the  woods;  and  he  would  give  him  a  little  laudanum,  and  put 
him  to  sleep  and  take  his  money.  Says  I,  I  can't  go  on  that. 
I  told  him  if  he  commenced  that  he  would  ruin  himself  and 
ins  whole  family;  he  said  there  is  not  a  bit  of  danger;  he  had 
had  this  man,  he  said,  to  New  York  or  Newark  (am  not  cer- 
tain which,  they  sound  so  much  alike),  and  to  Philadelphia; 
and  I  wouldn't  go  to  all  that  trouble  unless  I  knew  what  I 
was  doing;  1  told  him  nobody  knew  what  they  were  doing 
when  they  began  that  kind  of  business;  I  told  him  he  would 
hav  ive  up  the    idea;   he  says,  I  will  not  go   home  until  i 

get  it;  he  says,  I  will  do  the  stealing,  and  spoke  as  though  he 
wanted  me  to  hide  the  money;  he  said  it  I  wouldn't  have 
anything  to  do  v\  ith  it,  as  he  had  been  at  a  great  trouble  and  e5c- 
pense,  he  would  doit  himself  and  bury  the  money;  I  told 
him  not  to,  and  that  I  must  go  to  work  ;  I  told  him  to  slay  a 
dav  or  two  and  I  could  talk  to  him  in  the  evening,  and  in  the 
morning,  until  the  hay  was  lit  to  work;  he  said  the  man 
would  not  stay  at  Jennerville  by  himself,  and  it  he  (Udder- 
zook)  stayed  he   would  have  to  bring  the  man  up,  and  asked 

nic    i:    h<-  mighl  ;    I   told    him  he  should  ;    he    then  asked  me   lor 

my  horse  to  bring  the  man  up;  I  told  him  I  could  not  i;ive 
him  my  hoi  e,  as  he  was  at  Warner's;  he  asked  if  there  was  a 
livery  stable  at  Pennington ville ;  I  told  him  there  was,  and  he 
could  gel  a  team  there;  In-  a\  ,  the  man  is  very  sick;  he 
!  bethought  he  would  have  died  last  night,  or  the  othei 
ht,   I  don't  know  which;  thai  he  dosed  him  with  whiskey; 

he  ,    I  belii     ■■    in-  will  die,    and  how    would  it  he    with   you 

and  Annie  '»'■  he  should  die  al  youi  place?  would  you  allow 
me  to  put  him  away,  and  .i\  nothing  about  it  ?  I  said  no.  it  a 
:  would  die  ai  mv  place  there  would  have  to  he  a 
coroner  got,  and  an  inquest  held;  he  said  there  was  nobody 
to  look  after  this  man;  In-  -aid  he  had  been  lost  tor  a  long 
time,  and  everybody  thought  he  was  dead;  In-  had  no  friend 
that  would  look  after  him,  01  .  are  anytl  tout  him  ;   I  told 

him   it  didn't   make  any  differ  i    .1    trangei    died   there, 

there  would  have  to  he  an   i » •  -  j  - 1  *  -  - 1  ;    he  'In  owed  his  head  down, 


328  INSTRUMENTS    Oh    EVIDENCE. 

led  to  the  detection  of  more  forgeries  than  the  Anno 

Domini  water-mark  on  paper;  and  in  one  old  case  a 

criminal  design  was  detected,  by  a  letter  purporting  to 

his  cheek  appeared  to  get  red,  and  he  said,  that  might  lead  to 
some  suspicion;  1  told  him  I  couldn't  help  it;  I  couldn't  have 
anything  of  that  kind;  he  says,  well  what  then?  I  told  him 
I  could  not  tell  him  any  more  until  I  saw  the  man;  lie  started 
off  towards  Penningtonville  with  my  wife." 

This  witness  and  his  testimony  have  been  criticised  by 
nisei,  and  you  will  determine  what  weight  his  statements 
should  receive.  In  this  connection  it  is  important  to  remem- 
ber that  he  exhibited  the  prisoner's  letter,  referred  to,  soon 
alter  it  was  received,  and  reported  to  his  neighbors  the  inter- 
view, detailed  here,  almost  immediately  upon  its  occurrence. 
You  will  also  remember  the  testimony  heard  respecting  his 
character  for  truth-telling;  and  will  examine  the  prisoner's 
letter,  to  see  whether  it  does  or  does  not  corroborate  his  state- 
ments. That  letter  appears  by  the  envelope  to  have  been 
forwarded  in  the  preceding  December,  and  Mr.  Rhoades 
testifies  that  it  was  received  at  that  time.  It  is  in  the  following 
wefrds  : 

"  Friend  Sam  :  I  have  something  of  importance  that  must 
be  done  by  word  of  mouth.  Please  don't  let  anyone  know  of 
our  communications,  but  as  soon  as  you  read  this  mount  yoiu 
horse  and  come  to  Oxford;  taj<e  the  morning  train  to  Balti- 
more. When  you  come  to  Baltimore  inquire  for  Decker  & 
Brothers'  planing  ami  saw-mill.  This  mill  is  right  across  the 
street  from  where  you  get  out  of  the  cars.  I  am  employed  in 
the  said  mill,  and  am  there  every  day.  You  will  arrive  at  one 
o'clock;  you  must  take  the  next  train  for  Oxford,  which  is  at 
2.30,  that  will  give  u  one  hour  and  a  half,  which  will  be  suffi- 
cient for  1:  e  one  of  the  finest  plans  that  you  have 
heard  of.  There  is  a  cool  $1,000  in  it,  and  there  is  nothing  to 
prevent  us  from  getting  it.  This  is  without  a  doubt.  Do  not 
buy  your  ticket  at  Oxford,  but  pay  your  fare  on  the  car.  Do 
not  let  a  sou!  know  where  \oii  go.  I  cannot  explain  further 
until  1  >ii.  Do  not  tail  to  come.  Drop  everything  at 
once.  You  can  male  the  trip  in  a  few  hours.  I  have  no  per- 
son in  confidence  with  me.  and  I  now  propose  to  take  you; 
you  will  find  that  it.  is  the  best  day's  work  that  you  ever  did. 
I  will  give  you  full  explanation  when  I  see  you.  (Bring  the 
letter  with  you.)  Your  expenses  will  only  be  $4.00  or  a  little 
less.                  •■  Very  respectfully,  Wm.  E.  Udderzook. 

"  Be  firm,  be  true." 


REAL     EVIDENCE.  329 

have  come  from  Venice,  being  written  on  paper  mane 
in  England,  (a) 

Strong,  however,  as    coincidences  and  dissimilari- 

(a)  Moore,  817. 

On  the  evening  of  the  same  day,  after  the  interview  with 
Rhoades,  as  night  was  coming  on,  the  prisoner  started,  with 
the  man  by  his  side,  in  the  direction  of  Penningtonville. 
Baer's  Woods  is  about  nine  miles  from  the  place  of  starting, 
and  in  this  direction  the  parties  were  going  when  last  seen. 
John  Hurley,  who  lives  within  a  short  distance  of  the 
woods,  testifies  that  his  wife  in  the  night  aroused  him  to  hear 
a  noise  in  that  direction.  That  he  distinctly  heard  ha'looing, 
and  distinguished  the  voices  of  two  individuals,  but  1  ould  not 
distinguish  any  expression  except  the  exclamation  "Oh!" 
That  about  daylight  the  following  morning  he  discovered 
smoke  arising  from  a  fire  in  the  woods.  And  several  other 
witnesses  testify  to  having  seen  lire  in  the  woods  on  thai 
morning. 

It  is  further  shown  that  about  twelve  o'clock  the  same 
night,  the  prisoner  returned  the  vehicle  to  the  stable  at  Pen- 
ningtonville. The  iron  supporting  the  dasher  on  the  !<  ft  side. 
where  the  man  was  sitting  when  last  seen,  was  broken,  and 
the  leather  bent  forward:  two  of  the  bows  supporting  the 
top,  on  the  same  side,  were  broken  from  the  bed,  and  swing- 
ing I 'flic  oil-cloth  that  had  covered  the  floor  was  turn 

out  and  gone;  the  blanket  and  sheet  thai  accompanied  the 
w;  1  go  11  were  missing.  What  had  be<  ome  oi  th<  m  ?  I  lad  they 
been  stained  with  blood  mid  consumed  in  the  in.  ?  After  the 
discovery  of  the  body  the  floor  of  the  wagon  was  examined, 
and  red  spots,  apparently  made  by  blood,  were  observable  on 
the  edges  oi  the  boards  forming  the  bottom,  and  underneath 
where  it  appeared  to  have  spread.  Dr.  Howard  testifies  thai 
having  applied  microscopic  and  analytical  l  I 

he  :i  ■  '-i  tained  them  to  !  e  made  b)  blood. 

Now,  it  the  remains  found  in   thi  ds  are  tho  <   ol  the 

man  who    tarted  with  the  prisoner  from  Jennerville,  you  will 
judge  whether  the  pri    inei  did  oi  did  nol  carry  oul  the  de  i 
which  Rhoades    a)    he  expri     ed  in  the  inten  ew,  a  few  houi 
previou    ;    whether   the    hallooing   testified   to   by   Hurley  si.s 
heard  that  night  did  not   come  from  tl  a  ;  and    whethei 

tin-  smoke  seen  did  not  i  ue  from  :i  fire  thai  consumed  th< 
bio  J  menl    (a    ■■•.  ell  of  the  perpetrate  !  the  \  ii  t  im), 

mid  ol  her  <-\  idem  e    of  I  he  <  i  ime. 

Where  the  prit  on<  i  I   the  balan<  e  ol  tl"-  nighl    aftei 


l.YS  TK I  WEN  TS    ( '/•     E  J  VDENC  E. 

tii  3  of  this  nature  undoubtedly  arc  we  must  be  careful 
not  to  attribuce  to  them,  when  standing  alone,  a  con- 
clusiye  elicit  in  all  cases.     Just  let  it  be  remembered, 

urning the  vehicle  does  not  appear.  lie  was  seen  early  the 
next  morning  entering  Cochranville  on  loot.  Later  in  the 
day  lie  was  met,  still  on  foot,  going  in  the  direction  of  Jen- 
nerville.  On  tin-  evening  of  the  same  day,  about  six  o'clock, 
l.c  ap]  eared  at  Penn  Station,  on  the  Philadelphia  and  Balti- 
more Central  Railroad,  where  he  took  the  train  East,  getting 
oil'  again  at  West  Grove — this  being  the  point  at  which  he 
and  his  former  companion  had  (according  to  his  own  state- 
ment)   left    the  train    two    days    before.      In    a  short    time    he 

ippeared,  carrying  a  carpet-bag  and   valise,  and  entered  the 

train  going   westward.      At  Perm  .Station  he  left  it,  and  passed 

in  tiie  direction  of  Mr.  Miller's,  where  his  mother  resided.   On 

next  day — being  the  third  of  July — he  took    the   train  for 

i  re. 

When  arrested  he  made  a  statement  which  you  have  heard  ; 
an  1  you  will  judge  whether  it  is  consistent  with  probabilities, 
or  finds  countenance  in  any  ascertained  fact  in  the  cause. 

We  now  repeat  the  questions  before  stated:  First,  were  the 
Hind  in  Baer's  Woods  those  of  Winfield  Scott  Goss  ? 
i  (if  they  were),  did  the  prisoner  at  the  bar  take  his, 
Goss's  life?  Both  these  questions  must  be  found  against  the 
I  risoner  before  he  can  be  convicted.  In  passing  upon  them, 
you  will  carefully  weigh  all  the  evidence,  as  well  as  the  com- 
meats  ol  counsel  upon  it;  and  will  also  consider  the  testi- 
mony which  the  prisoner  has  produced  in  regard  to  his 
former  character. 

It  you  convict  him  you  must  determine  the  grade  of  his 
crime-.  That  it  is  murder,  if  he  is  guilty  at  all,  has  not  been 
qu(  i  by  his  counsel.     But  in  Pennsylvania   the   legisla- 

ture, considering  the  difference  in  guilt  where  a  deliberate 
intention  to  kill  exists,  and  where  no  such  intention  appears, 
has  distinguished  murder  into  two  degrees — minder  of  the 
first,  and  murder  of  the  second  degree;  and  required  the 
jury   trying  the  accused,    if  it    finds    him   guilty,  to   ascertain 

I  find  by  their  verdict  whether  it  be  murder  of  the  first, 
or  murder  of  the  second  degree.  So  it  is  further  provided 
that  '-murder  which  shall  be  perpetrated  by  means  of  poison 
or  lying  in  wait,  or  by  any  other  kind  of  willful,  deliberate,  and 
premeditated  killing,  shall  be  deemed  murder  of  the  first 
;  ami  all  other  kinds  of  murder  shall  be  deemed  mur- 
der of  the  second  degree." 


REAL     EVIDENCE.  331 

that  the  men  who  were  found  in  possession  of  the 
broken  knife,  and  the  fragment  of  the  ballad  (the  lat- 
ter   especially),  might    have  picked    them   up,  where 

Then  if  the  defendant  is  guilty,  is  it  of  murder  of  the  first, 
or  murder  of  the  second  degree? 

If  the  prisoner  killed  Goss,  you  will  determine  whether  it 
is  not  plain  that  the  crime  was  contemplated  beforehand,  and 
the  k i  1 1  i  1 111  willful  and  deliberate.  The  circumstances  bearing1 
upon  this  question  have  been  so  fully  stated,  in  treating  other 
parts  of  the  cause,  and  must  be  so  distinctly  present  in  vour 
minds,  that  we  need  not  repeat  them  here. 

Still  this  question  is  for  you  alone  to  determine,  and  if  you 
convict  the  prisoner  you  must  say  whether  it  is  of  murder  in 
the  first  or  second  degree. 

In  conclusion,  we  urge  upon  you  to  bear  constantly  in 
mind  the  great  importance  of  the  cause.  To  the  prisoner  it 
inv  )lves  everything  of  earthly  desire.  You  will  therefore  give 
to  the  facts  not  only  their  most  reasonable  construction,  but 
also  their  most  charitable  and  merciful  construction;  and  if, 
when  thus  considered,  they  fail  to  satisfy  you  of  his  guilt,  you 
will  acquit  him,  regardless  of  all  consequences.  And  he  is 
entitled  to  the  benefited'  every  doubt.  A  doubt,  however,  is 
not  a  mere  possibility  that  the  prisoner  may  not  be  guilty, 
but  an  honest  hesitation  of  the  mind  arising  from  the 
proof. 

If,  on  the  other  hand,  the  facts  satisfy  you  of  his  guilt,  you 
must  convict  him.  In  such  case  no  consideration  ol  pity  or 
mercy  can  influence  you,     To  the  tender  appeal   made  by  the 

pre  1 1    wife    and    children,  you  musl   turn  a  deal  ear.       I  o 

listen     to    it  would     be    more    than    :i    mistake;     it    would    1m 

crime     .1   (iime  againsl    the   innocent,  again  I  ty.     With 

the  consequence  which  may  attend  conviction,  you  have  noth- 
ing to  do ;    they    i  est    upon   othei   .     It   the   evidenci 

ir  minds  of  his  guilt,  you  have  no  choice.  Following  the 
pathway  ol  the  evidence,  you  can  turn  neithei  to  the  righl  nor 
to  the  left,  bul  mu  t  accept  the  conclusion  to  which  the   fact! 

d.     li    you  entertain    views  unfavorable  to  capital  puni 

nt,  you    must  disregard   them    here,  remembering  thti 
m»t    the   jury,  but    tin-   law,  that   mill  i    the  puni  hmi  nt.      I  <  i 
]ui\    does    not    pronounce   die   sentence  which  condemns  to 
death :    it   simply  detei  mine ,   whethei    the  pri 
mitted  the  .  i  ime. 

You  will  now  take  the  ,nd  forgetting  everything  but 

the   law,  the  evidence,   and  your  duty,   will   pass  an  h 


332  INSTRUMENTS    OF    EVIDENCE. 

they  had  been  thrown  by  the  real  criminals;  that  the 
person,  the  print  of  whose  knee  was  visible  on  the 
soil  near    the  murdered    corpse,   might  have    been  a 

deliberate,  and  fearless  judgment  between  the  commonwealth 

and  the  prisoner. 

Said  the  supreme  court  (Agnew,  C.  J.),  in  affirming  the 
conviction  on  error:  "  The  great  question  in  the  case  was  the 
identity  of  A.  C.  Wilson  as  W.  S.  Goss.  This  was  established 
by  a  variety  ol  circumstances  and  many  witnesses,  leaving  no 
doubt  that  Goss  and  Wilson  were  the  same  person,  and  that 
the  body  found  in  Baer's  Woods  was  that  of  Goss.  All  the 
bills  of  exception  except  one  relate  to  this  question  of  identity, 
the  most  material  being  those  relating  to  the  use  of  a  photo- 
ph  of  (loss.  Many  objections  were  made  to  the  use  of  this 
photograph,  the  chief  being  to  the  use  of  it  to  identify  Wilson 
I  J-oss,  the  prisoner's  counsel  regarding  this  use  of  it  as  cer- 
tainly incompetent.  That  a  portrait  or  miniature  painted 
from  life,  and  proved  to  resemble  the  person,  may  be  used  to 
identify  him,  can  not  be  doubted,  though,  like  all  other  evi- 
dences of  identity,  it  is  open  to  disproof  or  doubt,  and  must 
be  determined  by  the  jury.  There  seems  to  be  no  reason 
why  a  photograph  proved  to  be  taken  from  life,  and  to  resemble 
the  person  photographed,  should  not  fill  the  same  measure  of 
evidence.  Letters  from  Wilson,  identified  as  the  handwrit- 
ol  <ioss;  a  peculiar  ring  belonging  to  Goss,  worn  upon 
the  finger  of  Wilson;  the  recognition  by  Wilson  of  A.  C. 
G  rother;   packages   addressed   to   A.   C.  Goss,  and 

envelopes  bearing  the  marks  of  the  firm  with  which  W.  S. 
'  !  >ss  had  been  employed,  coming  and  going  to  and  from 
Baltimore,  and  many  other  circumstances  following  up  the 
man  Wilson,  leave  no  doubt  of  his  identity  as  Goss,  independ- 
ently of  the  photograph.  The  objection  to  the  proof  of 
(  !  s  habits  of  intoxication  is  equally  untenable.  True,  the 
habit  is  common  to  many,  and  alone  would  have  little  weight ; 
but  habit  means  of  identification,  though   with  strength 

in  proportion  to  their  peculiarity.  The  weight  of  the  habit 
was  a  matte]-  for  the-  jury.  It  is  unnecessary  to  follow  the  bill 
of  exceptions  in  detail.  They  all  relate  to  facts  and  circum- 
s  as  to  the  question  of  identity.  If  the  bills  of  excep- 
tion are  many,  they  only  denote  that  the  circumstances  were 
numerous,  and  in  this  multiplication  consists  the  strength  of 
the  f.      They   are    many    links    in    a    chain  so  long  that  it 

ei.  I  in  a  double  fold.     The  questions  put  to 

G.   1J    Moore,  A.  11.  Barintz,  and   A.  R.  Carter  were  unobiec 


REAL     EVIDENCE.  333 

passer  by  who  knelt  down    to  see  if  life  were    really 

extinct,  or   to  render  assistance  to  the, sufferer;  that 

the  having  lost  front  teeth,  or  being  left-handed,  are 

tionable.  Whether  they  really  would  not  identify  the  dark 
and  swollen  face  of  the  corpse,  it  was  not  for  the  court  to  de- 
<  ide.  The  weight  belonged  to  the  jury.  There  was  no  error 
in  permitting  the  jury,  after  their  return  into  the  court  for 
further  instructions,  to  take  out  with  them,  at  their  own  re- 
quest, the  teller's  check,  due  bill,  and  applications  for  insur- 
ance papers,  which  had  been  proven,  read  in  evidence,  and 
commented  on  in  the  trial.  The  appearance,  contents,  and 
handwriting  of  these  documents  were  no  doubt  important  to 
be  inspected  by  the  jury,  who  could  not  be  expected  to  carry 
all  these  features  in  their  minds.  It  is  customary  in  murder 
cases  to  permit  the  jury  to  take  out  for  their  examination  the 
clothing  worn  by  the  deceased,  exhibiting  its  condition,  the 
rents  made  in  it,  the  instrument  of  death,  and  all  things 
proved  and  given  in  evidence  bearing  on  the  commission  oi 
the  offense." 

The  case  of  Professor  John  W.  Webster  who  was  arraigned 
in  Boston,  February  roth,  1847,  for  the  murder  of  Doctor 
George  Parkman,  was  a  case  of  purely  circumstantial  evidence. 
Chief  .In  ti(  e  Shaw  charged  the  jury  as  follows : 

Gentlemen  :  I  rise  with  the  deepest  sense  of  the  responsi- 
bility   which    presses    upon    this   tribunal.      Vou    have   been 

long  engaged  in  this  importanl  case,  thai  I  cannot  detain 
you  much  longer  in  suspense.  I  shall  not  at  this  late  period, 
keep  you  long  confined  in  considering  the  facts  which  have 
been  so  fully  laid  before   von,  and   it   is  mainly  a  question  of 

I   shall  rather  dwell   upon  a  few  plain    principles.      It   is 

the  nature  of  our  laws,  under  which  our  live  ai  ■  ecured, 
t  di  tribute  to  the  several  organs  ol  government  each 
its    several    department    of     dul  tnd     each    is    respon- 

sible for  his  own.  We  are  tlOt  here  tO  make  tin- 
laws,  but  to  execute  them.  Mm.  indictment  chargi  the 
prisoner  ai    the   bar  with    murdi  Murder  is  the  highest 

specie    oi  homicide.       Homicide  i    a  general  term,  includ 
feral  degre<    ;  •      I  whi<  h  are   just  triable,  sui  h  as  th 

imitted  in  justifiable  war,  or  b)  the  officei  i  of  justice,  with 
proper  warrants ;  but  I  need  not  dwell  on  them,  ["he  statute 
Law  only  provide,  that  willful  murder  shall  I"-  punished  by 
death;  hut  that  is  not  the  only  law  in  force  among  ut  We 
bave  the  common  law.  The  common  law  wa  received  by 
our  ancestors  from    England,  bul    it    really  at    much   in  force 


334  INSTRUMENTS    OF    EVIDENCE. 

not  very  uncommon,  add  to  which,  that  some  persons 
arc  what  is  called  "  ambidextrous "  i.  e.  can  use  both 
hands  with  equal  facility  ;  (&)  that  the  Anno  Domini 

Tayl.  Med.  Jurisp.  230,  3rd  ed. 

ani.m-  us  as  any  other,  and  may  be  called  the  common  law 
ol  Massachusetts.  [The  learned  Chief  Justice  read  from 
a  memorandum  of  his  own  on  the  nature  of  malice.]  In  mur- 
der, to  the  imputation  of  malice,  the  prisoner  must 
prove  the  provocation,  the  accident,  or  any  other  circumstance 
which  goes  to  preclude  the  malice — otherwise  it  is  argued 
from  the  act  itself.  No  provocation  of  words,  however  op- 
probrious, will  mitigate  the  motive  for  a  mortal  Mow,  or  one 
intended  to  produce  death,  so  as  to  make  it  manslaughter, 
where  there  is  an  intention  to  kill.  If  there  is  sufficient  pr  >- 
ition.it  is  manslaughter;  but  words  are  not  a  sufficient 
provocation.  [The  Chief  Justice  read  some  authorities  from 
t's  Crown  Laws. J  Malice  is  implied  from  any  deliberate, 
cruel  act  against  another,  however  sudden.  When  there  is  a 
blow  of  a  deadly  or  dangerous  weapon,  with  indent  to  do 
some  great  bodily  harm,  and  death  ensues,  malice  is  presumed. 
If  a  man,  provoked  by  a  blow,  with  a   feeling  of  resentment 

urns  it,  and  kills  his  aggressor,  it  is  not  excusal  h •;   but   it 

5S  crime  than  murder;   it   is  manslaughter,  with  heat  of 

blood.     W       ee   no  evidence   in  this  case   of  any  provocation 

heat  of  blood.  There  were  angry  feelings,  but  thev  do  nol 
amount  to  a  provocation  or  a  heal  of  the  blood  sufficient  to 
render  the  crime  manslaughter.  The  purpose  of  a  coroner's 
in'  to  find  how  the  dead  body  came  to  its  death.      There 

■  distinction,  in  the  eve  of  the  law,  between  oersons, 
whether   it   1  ilored   pauper   in  a  county  alms-house,  01 

the  m  1st  distinguished  member  of  the  community.  The 
same  machinery  of  further  proceedings,  in  case  the  jury  find 
that  violence  was  used  by  some  party  to  produce  the  death. 
In  this  case  a  charge  was  made  against  an  individual  of  having 
in  vay  or  other  produced  death.       No  one  saw  it  done. 

Th<  ther  <  in  umstantial,  yet  it   may  be  suf- 

ficient  to    produce    a    reasonable    conviction.      Crimes    are 

ret.  There  i  1  ne<  essity  of  circumstantial  evidem  e,  other- 
Lid  not  protect  ourselves  from  crime.  Each  sort 
of  evide  advantages.     There  is  no  common  standard 

of  m.     We  may  often  arrive  at  as  sure  a  conviction 

by  circumstantial  as  by  positive  evidence.  The  inference 
fr   m    the   facts   should   be  a   natural   or  a  necessnrv  one.  and 


RE  A  L     E  VIDENCE.  3  3  5 

water-mark  on  paper  is  by  no  means  infallible,  the 
year  being  often  anticipated  by  the  manufacturer  ;  (c) 
that   in  the  present  age  of  the  work!  at  least,  a  person 

(c)  Wills,  Circ.  Ev.  29  and  114,3rd  ed. 

each  fact  should  be  proved  by  itself.  Suppose  in  the  present 
case  the  teeth  are  found  to  be  those  made  for  Dr.  Parkman 
before  his  death;  that  fact  is  itself  sufficient  to  establish  the 
conclusion  that  the  remains  are  his,  if  no  other  facts  are  found 
repugnant  to  this.  The  allegation  is  that  he  entered  the 
Medical  College  about  two  o'clock,  and  never  came  out  of  it 
alive.  Search  was  made  during  the  week.  The  next  Friday 
Human  remains  were  found  under  the  Medical  College.  The 
place  was  taken  possession  of  by  the  police.  Investigations 
were  made,  and  the  remains  were  declared  to  be  those  of  Dr. 
Parkman.  Is  this  proved  ?  It  is  proved  that  he  disappeared 
from  his  home  on  Friday  forenoon,  and  did  not  come  hack  to 
dinner. and  never  came  hack  ;  this  is  established.  Hash  been 
proved  that  he  was  seen  anywhere  after  the  hour  he  is  said  to 
have  entered  the  college?  As  to  the  testimony  of  Mrs. 
Hatch,  Mr.  Thompson,  Mr.  Wentworth,  Mr.  Cleland,  Mrs. 
Rhoade  and  her  daughter,  and  Mrs.  Greenoun-h,  1  need  not 
jommenl  particularly.  It  is  if)  be  compared  with  the  prool 
on  the  other  side.  When  such  a  great  event  happens,  the 
whole  community  is  thrown  into  a  committee  ol  inquisition, 
and  a  lai  "•  number  ol  lines  of  inquiry  are  instituted  ;  a  great 
many   pe  are   found    who  have    seen   the  object    ol    the 

search.  It  became  known  on  Saturday  evening  thai  Dr. 
Parkman,  a  man  known  to  almosl  everybody,  had  dis- 
appeared. The  whole  community  were  put  upon  theii 
i  ollections,  and  would  ii  be  strange  il  a  greal  mam-  had 
n  him,  and  yet  have  been  mistaken?  If  they  had  nol 
been  mi  taken,  would  no1  others  be  found  when  all  were 
intent,  who  would  testify  thai  they  saw  him  al  Hii 

:ui\  e  <'.  i<  it  i    1 1  ne,  is  nol  <  on<  In  ive  in  il     it,  bul  il 

to  destroy  the  positive  evidence,  for  we  can   hardl)  conceive 
that  il  there  had  been   no   mi  take   in  those  who  saw    him 
to  his  identit)  oi   the  time,  a   great    man)    othei      would  nol 
also  have    een  him,  and  would  noi    havi  ected    il    the 

nexl  day.     It   I  >i .  Parkman  wenl  to  the  collcgi   al  the  invita- 
tion oi  Dr   Webster,  and  was  there  killed   by  him.  all   qui 
tion  ol    mplied   malice  is  put  oul  of  the  question,  foi    il    w    I 
done  l".  -  ,  malice.     Dr.  Webster  admits  thai    Dr.  Park- 

man  1  ■.  and,  as  he    iv  ,  he  paid  him  money.     It  i    in 


WS  TRl  TMENTS    ( >F    E 1 7DENC  E. 

writing  at  Venice  on  a  sheet  of  paper  brought  or  im- 
ported from  England,  is  scarcely  improbable;  and 
that  even  the  impression  made  on  the  face  by  the  key, 

evi  lence  that  Webster  stayed  there  that  afternoon,  and  left  there 
■  in  6  o'clock.  In  so  much  as  E)r.  Parkman  has  never  been 
en  since  that  afternoon,  if  it  shall  appear  that  the  remains 
found  in  the  apartments  of  Dr.  Webster  were  identified  as 
his  body,  the  alibi  is  of  no  consequence.  In  a  recent  case  in 
Richmond  a  man  was  stabbed  with  a  knife;  a  man  was 
arrested  who  had  a  knife  in  his  possession  the  day  before;  the 
handle  of  the  knife  was  found  broken  off  near  the  deceased. 
It  was  sworn  to  be  that  which  belonged  to  the  prisoner  the 
day  before;  and  on  a  post  mortem  examination,  a  blade  was 
found,  which  by  the  scratched  edges  of  the  broken  steel,  tal- 
lied with  that  of  the  handle.  This  circumstance  was  allowed 
a  great  weight.  When  a  circumstance  of  this  kind  is  estab- 
lished, then  the  absence  of  any  testimony  to  the  contrary — the 
proof  of  concurrent  circumstances — has  a  strong  tendency  to 
strengthen  the  conclusion.  When  a  party  has  attempted  to 
suppress  proofs,  the  circumstance  acts  to  prove  a  conscious- 
in  -  of  guilt.  When  we  apply  these  principles  to  a  case,  cer- 
tain rules  are  to  be  applied  First,  the  circumstances  upon 
which  the  conclusion  depends  are  to  be  fully  proved;  all  must 
connect  together;  no  one  must  be  inconsistent  with  an  act  of 
this  nature  or  alibi.  An  alibi  means  elsewhere.  If  a  man  is 
charged  with  being  in  one  place,  and  he  can  prove  himself  in 
another  at  that  time,  then  he  must  escape.  This  is  a  mode  of 
defense  which  easily  su^ests  itself,  and  may  be  secured  by  a 
a  little  contrivance.  Third,  the  circumstances  must  not  only 
limit   i  lilt    of  the   party,   but    they   must    be    such    as    to 

ex<  hide  every  other  reasonable  hypothesis.  They  must 
hide  all  reasonable  doubt.  What  is  a  reasonable  doubt? 
it  -must  be  more  than  a  probability.  The  facts  must  be  sue 
as  to  implicate  the  defendant  also.  We  must  now,  gentlemen 
apply  these  to  tie-  pic -cut  case.  The  indictment  charges  J. 
W.  Wei  ter  with  the  murder  of  Dr.  George  Parkman,  on  the 
2jrd'.:    '.  ;ist.     The  indictment  lias  been  referred  to 

by  tin-  def  tnd  we  have  taken  the   matter- into   considcra 

thm.      It  i  ulc  of  law  that  the  means  and   manner  of  the 

crime  shall  i,  so  that  the  prisoner  may  prepare  for 

his  ii   is  produced   in  some  new  mode,  the 

■    will  i  riminal    escape.     It  has  general  rules 

which  provide  tor  new  cases.     The  last  count   sets  forth  that 
the  Drisoner  assaulted  and  killed   George    Parkman,  in  some 


REAL     EVIDENCE.  337 

might  have  been  caused  by  a  blow  from  the  same  or 
a  similar  key  at  some  other  time,  (d)  or  might  possi- 
bly be  a  natural  mark.     An  excellent  instance  of  how 

{d)  Goodeve,  Evid.  29. 

manner  or  by  some  weapon  unknown  to  the  jury,  The  court 
are  of  opinion  that  this  is  a  good  count.  Dr.  Turkman  may 
have  been  assaulted  with  chloroform  or  ether,  which  stupefied 
and  made  him  insensible,  and  then  death  would  have  been 
caused  by  weapons  to  the  jury  unknown;  and  the  jury  were 
only  bound  to  set  forth  all  they  knew.  That  is  necessary 
to  be  proved.  First,  it  is  necessary  to  prove  the  corpus 
delicti,  or  the  killing  so  as  to  exclude  suicide  or  accident.  Dr. 
Parkman  was  in  good  health,  as  appears  by  Mr.  Shaw,  that 
morning.  We  come  now  to  the  teeth.  These  are  the  princi- 
pal signs  of  identification.  That  the  other  parts  of  the  body 
did  not  differ  in  any  material  respect  from  Parkman's,  proves 
little  in  itself,  but  becomes  very  important,  if  it  is  made  out 
that  the  teeth  were  his.  It  is  a  serious  inquiry,  whether  by 
the  correspondence  of  the  teeth  to  the  mould,  the  identity 
1. hi  be  made  out.  We  must  rely  only  on  the  evidence  of  those 
who  have  made  this  subjeel  their  study.  Dr.  Keep  identified 
the  h  without  hesitation,  pronounced    them    Dr.   Park- 

man's,  and  In-  has  explained  to  you  the  reasons  which  confirm 
him  iii  that  opinion.  You  have  also  heard  the  testimony  of 
Dr.  Noble  to  the  same  effect.  Dr.  Morton  is  of  opinion  that 
the  <  haracteristii  s  of  teeth  an-  not  such  as  t< ,  enable  a  dentist 
to  ident  ify  his  u  ork,  under  su<  h  circumstani  es,  with  certainty. 
Three  other  eminent  dentists  have  been  called,  who  arc  of  a 
different  opinion,  and  confirm  Dr.  Keep.  This  evidence  is, 
undoubtedly,  to  be  ret  eived  with  care.    It  is  of  the  same  nature 

of  that  whi'  h  T  applied   to  fossil    remains,    and    by    means   of 

which  le  bone  is  made  |(1  lead   t.>  the  discovery  of  an 

entire  animal  ol  an  extincl     pecii    ,     Vou  must  be  judges  of 
it  in  this  <  ise.     Ii  the  e  are  the  teeth  of  Dr.  Parkman,  and  if, 
!    to    \  "ii    by    Dr.    Keep,  t  heii   <  ondil  ion  pro> 

that   they   '  at  inio  tie-  fumai  e  in   the  head,  and  the  whole 

body,  no  part  of  it  beii  imilar  t"  l>i    Parkman's,  and  it 

t he  suppo  and  ai  <  idental  death  ■"'■  exi  luded, 

tie-  1  orpu  esl  ablished.     I  shall  pa-  s  o\  ei    th< 

11 1  on  y  ol  I.it  tie  held,     it  has  been    omewhal  -  ailed  in  question. 
Cm    whether  much    or  little    weighl   be  given  it,  il    d< 
materially  aflfe<  t  thi  I :  i  emarked   that, 

it  floes  affect   the   case,  it    is   confirmed   by  other  wil 
22 


33S  INSERT  J  fENTS     OF    EVIDENCE. 

closely  the  propensity  to  run  after  coincidences  ought 
to  be  watched,  is  presented  by  the  case  of  one  Fitter. 

who  was  indicted  at  the  Warwick  assizes  of  1834,  for 

"(particularly  tin-  officers  of  the  police).  From  about  Sunday 
or  Monday  pretty  strict  watch  was  kept  of  the  Medical  Col- 
ege  till  Friday.  Nothing  important  could  be  transacted 
here  without  the  knowledge  of  the  police,  of  Littlefield  or 
Webster.  To  some  of  these  parties  the  existence  and  condi- 
tion of  these  remains,  found  partly  under  the  privy,  in  the  tea 
chest,  and  partly  in  the  furnace,  must  have  been  known.  You 
will  judge  from  the  evidence  by  whom.  We  do  not  think 
much  can  be  argued  by  the  conduct  of  the  defendant  after  his 
arrest.  We  have  no  experience  here  to  guide  us.  We  do  not 
know  how  we  should  act  in  such  a  case,  or  how  he  ought 
to  have  acted.  To  come  to  the  main  proof  of  this  case, 
there  are.  two  theories  in  regard  to  it.  The  government  takes 
the  one,  which  supposes  that  he  invited  Dr.  Park  man  to 
the  Medical  College,  and  there  slew  him,  in  order  to  get  pos- 
session of  two  notes  which  he  owed  to  Dr.  Parkman,  and  that 
he  got  possession  of  them.  Dr.  Parkman  had  loaned  to  Pro- 
fessor Webster  four  hundred  dollars  in  1S41.  In  1846  several 
parties  contributed  to  another  loan,  to  relieve  him,  to  the 
amount  of  two  thousand  four  hundred  and  thirty  dollars;  to 
this  Dr.  Parkman  contributed  five  hundred,  and  the  three 
hundred  and  thirty-two  dollars  on  the  old  note;  and  other 
parties  the  balance.  Dr.  Parkman  held  the  large  notes  and 
the  mortgage  on  personal  property,  for  its  security,  for  the 
benefit  of  himself  and  the  other  parties,  and  also  the  old  note, 
which  was  to  be  given  up  whenever  his  share  was  paid.  It 
appears  that  the  defendant  was  in  possession  of  both  notes, 
and  the  government  contends  that  he  never  paid  either;  that 
he  invited  Dr.  Parkman  to  his  lecture-room  and  slew  him,  to 
get  possession  of  these  notes.  If  this  be  proved,  it  is  express 
malice.  The  other  theory  is  that  of  the  defense,  that  being 
together,  the  one  to  pay  and  the  other  to  receive  money,  they 
quarrelled,  ana  Dr.  Webster  killed  Dr.  Parkman  in  sudden 
heat,  and  then  concealed  him  to  avoid  detection.  If  this  be 
proved,  it  may  be  manslaughter.  If  Dr.  Webster  did  entice 
Dr.  Parkman  to  the  Medical  College  to  get  possession  of  the 
notes,  we  can  see  no  difference  between  it  and  murder.  The 
government,  to  strengthen  its  theory,  brings  proof  that  he 
uld  not  have  had  money  to  pay  either  of  the  notes;  and  he 
has  never  pretended  that  he  had  money  to  take  up  the  larger 
one  of  them.     You  will  judge  one  very  significant  fact  is,  that 


REAL    EVIDENCE.  339 

the  murder  of  a  female.  He  was  a  shoemaker;  and 
his  leathern  apron  having  on  it  several  circular  marks, 
made  by  paring    away  superficial  pieces,  it  was  sup- 

the  ninety  dollars  which  was  that  morning  paid  to  him  by 
Mr.  Pette — a  check  on  the  Freeman's  Bank — was  not  a  part 
of  the  money  paid,  but  was  on  that  afternoon  or  the  next  day 
deposited  in  the  Charles  River  Bank,  to  his  credit.  He  also 
told  Mr.  Pette  that  morning  that  he  had  settled  with  Dr. 
Parkman,  although  Dr.  Parkman  had  not  yet  called  on  him. 
You  must  judge  how  far  these  circumstances  go  to  prove  in- 
tention to  get  hold  of  the  notes  as  a  motive  of  the  homicide; 
and  if  that  was  the  motive,  it  is  a  very  strong  case  ol"  murder 
by  express  malice.  If,  in  the  hypothesis  of  the  defense,  the 
concealment  of  the  remains  was  made  by  another  hand,  it  was 
of  no  interest  to  Dr.  Webster,  and  his  reluctance  toward  the 
search  is  to  be  accounted  for,  as  well  as  the  fact  that  he  did 
not  him  »elf  make  the  discovery  which  lay  directly  in  his  way. 
Any  concealment  of  evidence  going  to  implicate  him,  to 
which  a  party  under  suspicion  resorts,  must  go,  as  far  as  it 
goes  at  all,  against  him.  He  has  mentioned,  that  the  package 
to  which  he  referred  in  his  letter  to  his  daughter,  was  one  ol 
nitric  acid,  and  not  those  notes  which  have  been  brought 
evidence  to  prove  the  intention  of  the  homicide.  If  so,  as  far 
as  that  goes,  it  goes  to  obliterate  the  erfed  of  attempted  con- 
ilment  of  evidence.  But  it  does  not  at  all  a  licet  the  case  or 
the  bearing  of  the  e  note-,  when  found,  or  the  animus  or  inten- 
tion ot  tin-  net.  Tin:  circumstances  of  the  twine  used,  and 
many  others,  which  il  is  needless  to  mention,  go  lo  show,  that 
wh<  .lid  an)  part  in  the  ,  on<  ealmenl  of  these  remains,  did 

the  whole.     We  think  it  of  mu<  h  1  onsequem  e  thai  he  waived 
an  examination   in  the   police  court.     A.s  to  the  anonym 
letters,  you   must  judge  of  their  bearing,  il  proved.     But  we 
mu  t  remark,  that  we  consider  the jjroofol  them  dingly 

slight.     Charai  ter  may  be  ol  1  on  •  quen<  e  in  a  mi  inn  ca  e, 
<>\  la  r<  eny  ;    bul    when  a   ]  >ri  -  wit  h  a  ci  ime 

atr<  nk  to  tie-    ame  level,  and  we  mu  t       t  on  the 

proof  of  the  facts ;  yel   in  such  a  ca  e  the  prisoner  has  a  right 
to  put  in   his  character,  and  the  testimony  is  competent  ev 
dence.     Many  other  thing  upon  my  mind,  but  the  tii 

remind  [  ought  to  close.     Vou  have  been    elected  by 

mo  rued  in  th(  e  busin  ire 

the  gi  impartiality.     Take  sufficient  time  to  deliberate 

•u   y »ur  vei diet.      I    1  tod    judgment  ami   •.mind 

consci  md  we  are  d  the  verdict  will  be  a  true  one 


34o  INSTRUMENTS     OF    EVIDENCE. 

posed  that  they  had  been  removed  as  containing  spots 
of  blood;  whereas  it  was  satisfactorily  proven  in  his 
defense,  that  he  had  cut  them  off  for  plasters  for  a 
neighbor,  (e  \ 

(<r)  Wills,  Cue.  Ev.  128,  3rd  cd. 

Second  only  to  the  Webster-Parkman  case,  in  importance, 
upon  the  question  of  circumstantial  evidence,  is  the  case  of 
Sturtevant  in  the  Supreme  Court  of  Massachusetts,  1874.  The 
Jui  g<   1  W  ells.)  charged  the  jury  as  follows: 

In  this  case,  which  has  been  several  times  noticed  in  the 
text,  the  charge  to  the  jury  was  given  by  Wells,  J.,  of  the 
supreme  court.  For  the  stenographic  notes  from  which  the 
following  is  taken  the  editor  is  indebted  to  Mr.  Train,  the 
attorney  general  of  the  commonwealth  : 

Mr.  Foreman  and  Gentlemen  of  the  Jury:  I  congratu- 
late you  upon  the  near  approach  of  the  close  of  this  long 
trial,  and  there  remains  but  a  small  duty  for  me  to  perform  in 
this  case,  because  they  are  but  few  questions  which  the  court 
are  to  deal  with.     It  is  mainly  a  simple  question  ot  fact.     The 

irt   is  to  deal  only  with   the  law  and  its  application  to  the 

!s;  the  counsel  deal  with  the  facts  and  argue  them  to  you; 
has  been  so  conducted  throughout,  from  the 
b  ginning  of  the  trial,  by  the  counsel  upon  both  sides,  with 
thai  cons<  ientious  regard  to  their  duty,  with  that  appreciation 
of  the  principles  of  law  which  apply  to  the  case,  that  the 
court  have  had  little  to  do  but  sit  by  and  see  the  trial  pro- 
ceed ;  and  so,  in  this  last  stage  of  it,  the  argument  has  been 
conducted  so  fairly  upon  both  sides,  with  such  a  correct 
appreciation  of  the  bearing  of  the  law  upon  the  facts,  that 
there  is  still  in  this  branch  of  the  case  but  little  left  for  the 
court.  The  court,  as  I  say,  is  to  deal  only  with  the  law,  in  its 
application  to  the  facts,  and  arguments  which  have  been 
presented  and  is  not  to  deal  with  the  facts  or  the  evidence,  ex- 
cept so  far  as  to  see  that  the  law  is  rightly  applied  to  the  evi- 
dcti' 

It  is  Li  onsible  office,  that  which  you  are  to  per- 

form, and  have  been  performing  through  the  week  in  regard 
to  thi  It  is  a  responsibility  which  you  share  with  the 

court,  with  the  counsel  upon  both  sides,  with  the  officers,  and 
with  the  witnesses.  None  ol"  us  are  responsible  for  the  results, 
none  of  us  are  responsible  for  what  may  happen  as  the  con- 
sequence of  our  proceeding;  all  of  us  are  responsible  that  we 
do  that  part   of  it  winch  falls  to  our  lot  faithfully,  conscien- 


RE  A  L    E  VIDENCE.  34 1 

It  is  when  taken  in  connection  with  other  evi- 
dence, that  physical  coincidences  and  dissimilarities  are 
chiefly  valuable  ;  and  then  they  certainly   press  with 

dously,  intelligently,  and  according-  to  real  convictions  of 
duty;  and  when  we  have  done  that,  there  is  nothing 
which  can  attach  to  us  of  responsibility  beyond.  And  your 
duty,  gentlemen,  is  to  have  listened  carefully  to  the  testimony 
which  has  been  produced  before  you;  to  have  made  that  use 
of  your  minds  which  it  is  the  duty  of  every  intelligent  man 
to  make  of  that  intellect  and  judgment  with  which  ne  is  en- 
dowed ;  to  see  that  you  are  free  in  your  minds  from  every 
influence  that  shall  warp  your  judgment,  which  shalJl  lead  you 
to  give  undue  weight  to  evidence,  or  to  reject  evidence  which 
ought  to  be  considered  ;  to  free  your  minds  from,  every  dis- 
turbing influence,  whether  of  fear,  of  anxiety,  of  passion,  or 
of  prejudice  or  bias  or  undue  scruple  as  to  the  results,  whether 
to  the  prisoner  or  to  the  community;  to  free  your  minds  from 
all  considerations  of  this  sort,  so  that  they  will,  like  a  magnet 
upon  its  pivot,  answer  to  the  influence  which  every  fact  pre* 
scnted  to  you  shall  have  upon  them,  to  attract  them  towards,  01 
repel  them  from,  their  conclusions.  But  when  you  have  taken 
all  the  facts  in  the  case,  and  dealt  with  them  fairly  and  hon- 
estly, as  your  minds  deal  with  all  facts  which  come  before  von 
in  the  course  of   your  life;    when  you    have   lei    your  minds* 

pond,  of  iis  own  instincts  and  impulses,  to  uit  weight  of 
tho  ;e  fa<  I  ■,  it'  you  find  that  there  results  in  you,  minds  a  con- 
viction of  the  truth  of  the  main  proposition  in  the  case,  one 
way  or  the    other,  then   your  dutv  remains   10   declare   that 

ult  in  your  minds,  without  regard  to  any  further  conse- 
quences. 

The  charge  here  is,  thai  this  prisonei  is  guilty  of  the  mur* 
der  of  Simeon  Sturtevant.  The  indictment  i  a  charge  of 
murder,  but  upon  an  indictment  for  murder,  where  there  has 
been  a  homicide,  If  the  evidence  warrants  it,  there   may   be  a 

iviction  either  of  murder  or  manslaughter.  Manslaughter 
is  a  homicide,  not  excusable,  not  justifiable,  but  ye\  not  inten- 
tional ;  a  homii  ide  whi<  h  re  ult  •  from  wrong  condu<  1.  but  not 
from  the  cool  intent  to  kill;  from  mi  behavior,  loan  miscon- 
duct which  re  ults  differently  from  what  the  party  had  reason 
to  expe<  1  from  the  act  whi<  h  wa  (done.  A  murder  is  a  homi- 
cide which  had  bee,,  caused  intentionally— intentionally, 
either  from  the  express  purpose  to  commit  the  murder,  or 
from  a  n  rongful  a<  1  of  violen<  e,  with  such  means  and  in  su<  h 
a   manner  as    might    i    i        bly   be   supposed    would   cause 


INSTRUMENTS    OF    EVIDENCE. 

fearful  weight  on  a  criminal.  But  if  their  presence  is 
powerful  for  conviction,  their  absence  is  at  least 
equally  powerful  for  exculpation.  Sir  Matthew  Hale 
death.  There  must  be  in  murder  what  is  called  "'malice;" 
namely,  either  a  purpose  to  kill  or  else  a  purpose  to  do  an  act 
of  violence  whi<  h  might  reasonably  be  supposed  would  cause 
death,  and  which  docs  cause  death. 

If  you  find  that  there  has  been  a  murder  in  this  case,  it 
will  be  necessary  for  you  to  go  further,  and  ascertain  whether 
it  is  murder  in  the  first  or  second  degree.  The  description 
in  the  indictment  is  the  same  for  either,  but  the  statute  pro- 
vides that  murder  committed  with  deliberate,  premeditated 
malice  aforethought,  or  in  the  commission  or  attempt  to  commit 
any  crime  punishable  with  death  or  imprisonment  for  life,  or 
committed  with  extreme  atrocity  or  cruelty,  is  murder  in  the 
first  degree.  Murder  not  appearing  to  he  in  the  first  degree 
is  murder  in  the  second  degree  VTou  will  perceive  by  the 
repetition  of  the  language  which  indicates  forethought,  that 
it  is  the  intent  of  the  statute  to  make  murdei  in  the  first 
degree  only  of  those  cases  where  the  murder  is  of  such  a  char- 
acter as  to   show  a  deliberate  purpose.      But  deliberation  does 

I  require  any  considerable  length  of  time.      The  mind delib- 

ites  rapidly,  sometimes  instantaneously,  going  from  its 
'premises  to  its  conclusions  in  an  instant  of  time  ;  so  that  a 
deliberately  premeditated  murder  with  malice  aforethought 
may  result  from  an  intent  to  kill  which  the  mind  conceived 
the  instant  before  the  weapon  was  taken  or  the  blow  struck. 
i re um stances  of  the  transaction  are  to  be  taken  into 
consideration,  in  order  to  determine  whether  it  be  of  this 
character  or  not;  and  upon  this  question   it  is  competent  for 

i  to  consider,  not  only  the  fact  of  the  dangerous  character 

apon  which  was  used,  if  vou  find  that  such  a  weapon 

but  it   is  also    competent    for  you   to    consider    the 

Oth(  whieh  seem  to  have  taken  place  at  or  about 

the  same  time.      In  this  connection,  as  bearing   upon  the  ques- 

i  whether  the  person  who  killed  Simeon  Sturtevant  did  so 

th  deliberately  premeditated  malice  aforethought,  you  may 
ito  consideration  the  fact,  if  you  find  it  to  be  a  fact,  that 
he  also  killed,  at  the  same  time  or  about   the  same  time,  the 
otl  ms.     The  evidence  that  the  weapon  was  delib- 

erately taken  and  brought  there  for  the  purpose  would  be 
SUflh  ienl  to  warrant  you  in  finding  that  it  was  deliberately 
p''  to  make  it  murder  in  the  first  degree. 

S  <.  also,  if  vou  are  satisfied  that    this   homicide   was  com- 


REAL     EVIDENCE.  343 

relates  a  remarkable  instance  of  a  man,  who  rebutted 
a  charge  of  rape  by  showing  that  he  labored  under  a 
frightful    rupture,  which   rendered    sexual  intercourse 

initted  in  the  attempt  to  commit  the  crime  of  robbery  by- 
entering-  that  house,  or  being-  in  the  house  by  entering  any 
of  its  rooms  against  the  will  of  the  owner,  the  rooms  not 
being  open,  then,  whatever  may  have  been  the  purpose  of  the 
individual  who  went  there  originally,  if  this  homicide  was  the 
result  of  an  attempt  to  commit  such  a  robbery,  it  is,  by  the 
express  declaration  of  the  statute,  murder   in  the  first  degree. 

If,  therefore,  you  find  that  this  weapon  was  taken  there  for 
the  purpose  of  being  used  in  the  homicide,  or  if  you  find  that 
the  person  who  committed  the  homicide, did  it  in  the  attempt 
to  commit  a  robbery  and  in  the  execution  of  the  purpose  of 
the  robbery,  then  you  must  find  him  guilty  of  murder  in  the 
first  degree. 

But  the  main  question,  as  1  suggested,  is  one  of  fact,  not  as 
to  the  character  of  the  offense  committed,  because  there  is  no 
serious  controversy  here  that  this  was  such  a  murder  as  would 
be  murder  in  the  first  degree.  Nevertheless  it  is  for  you  to 
Gndthat  whal  is  the  fact,  and  the  law  requires  that  you  should 
find  it,  and  state  it  in  your  verdict.  If  you  find  a  criminal 
homicide,  you  will  say  whether  it  be  manslaughter  or  murder, 
and  it  murder,  whether  in  the  first  or  second  degree.  But  the 
principal  question  is,  did  this  person,  who  is  now  arraigned 
before  you,  commit  the  act  which  resulted  in  the  death  of 
Simeon  Sturtevant  ?  The  whole  case,  as  has  been  suggested 
to  \"u,  re  ts  upon  circumstantial  evidence.  It  is  necessary, 
therefore,  to  consider  somewhat  the  character  ol  that  kind  oi 
evident  e. 

<)i    cour  e  where  a  person  kills  another,  the  most  direct 

.    to  the  perpetrator  of  the  assault  is,  by  the  very  act 

ot  killing,  destroyed.     Here  the  three  persons  who  wen-  the 

upants  ot  the  house  were  killed.  The  direct  evidence, 
ili<  refore,  is  put  beyond  rea<  h,  and  necessaril)  1  in  umstantial 
evidence  mu  t  be  re  orted  to  It  may  I"-  thai  the  purpose  ol 
the  killin  merely  to  put  the  evidence  beyond  reach;  it 

may   be  that  it   was  merely  a,  a  means  ol   reaching  ihe  obj 
in  view     to  se<  ui  e  booty.     Whatevi  r  it  may  be,  the  direct  evi 
dence  has  disappeared,  and  vou  are  left,  therefore,  to  circum- 

mial  evidence.     The  closing  rei 1    the   government 

attorney,  whicli  adopted   Ian  which  had   been   used  by 

the  court  in  si  mi  liar  proceedi  1  this,     1  far  a    I  could  see, 

were  not  open  to  any  exception.     He  has    tated  substantially 


344  INSTRUMENTS    OF    EVIDENCE. 

almost,  if  not  absolutely,  impossible.  (_/")  This  is, 
however,  an  old  case  ;  and  should  a  similar  one  now 
occur,  the  perfection  which  the  manufacture  of  trusses 

)   i  Hale,  P.  C.  035,636. 

what  the  nature  oi  circumstantial  evidence  is.  It  is  indicated 
by  the  very  term  itself.  Circumstantial  evidence  is  the  evi- 
dence from  tails  which  stand  around  the  main  fact  to  be 
proved.  Direct  evidence  is  evidence  pointing  directly  to 
the  establishment  of  the  fact.  Direct  evidence,  as  has  been 
stated,  is  evidence  from  the  sight,  or  some  of  the  senses, 
of  the  very  fact  in  controversy ;  but  when  such  evidence 
is  gone,  we  resort,  in  capital  trials,  as  in  all  the  business 
of  life,  to  what  is  called  circumstantial  evidence;  that  is,  we 
resort  to  those  inferences  which  the  mind  draws  from  sur- 
rounding circumstances,  and  it  is  stronger  or  weaker  accord- 
ing to  the  nature  of  those  circumstances — their  nearness  in 
relation  to  the  fact  to  be  established,  and  their  concurrence 
with  each  other  towards  one  and  the  same  conclusion.  If  you 
find  all  the  facts  which  are  developed  in  regard  to  a  trans- 
action or  in  regard  to  a  person  to  indicate  one  line  of  results, 
then  you  draw  from  those  facts  an  inference  as  to  other  facts 
which  are  not  brought  to  your  vision,  and  not  brought  to 
your  actual  knowled  • 

Perhaps  I  may  illustrate  by  some  of  the  evidence  in  the 
present  case  substantially  what  I  would  have  you  understand 
as  t<>  the  bearing  of  evidence  which  is  in  its  nature  circum- 
stantial. Take,  for  instan  :e,  the  evidence  as  to  the  weapon 
which  killed  Simeon  Sturtevant.  There  was  no  weapon  found 
in  the  room;  there  is  nothing  by  which  the  precise  shape  and 
m  of  the  instrument  can  be  gathered  in  the 
wounds  which  he  re<  eived,  except  that  it  was    not  a  sharp   in- 

ument,-  that  it  was  some  blunt,  smooth,  but  heavy,  solid 
instrument.  Now,  von  find  the  three  persons  killed  with 
similar  wounds;  you  find  this  club  lying  near  one  of  them  ; 
you  find  blood  upon  that  club;  you  find  no  other  instrument 
anywhere  about  the  premises  which  appears  to  have  been  used 
for  such  a  purpo  e,  or  which  appears  not  to  be  in  its  own 
properplace.     You  put  together  all  these  surrounding  circum- 

•i<  <s.  You  may  for  instance  consider  that  there  were  marks 
upon  the  ceiling  of  >rch  <<v  kitchen,  and  upon  the  casing 

the  door,  wlrch  indicated  that  they  might  have  been  pro- 
duced by  such  a  club.  You  may  take  into  consideration  the 
fact,  if  you  believe  that  it  is  so,  that  there  were  particles  of 
plaster  on  the   point  of  the  club,  and  also  in  fche  indentations 


REAL     EVIDENCE.  345 

has  attained  in  modern  times,  would  be  an  affirmative 
circumstance  not  to  be  overlooked. 

202.  The    infirmative    hypotheses    affecting'    real 

upon  the  casing  of  the  door.  You  may  take  into  consider- 
ation the  character  of  the  club,  and  the  description  of  the 
wound,  as  indicating-  whether  or  not  the  wound  was  such 
as  would  be  likely  to  be  produced  by  such  an  instrument.  You 
may  take  into  consideration  the  position  of  the  various  p  •:- 
sons  who  were  injured  and  the  direction  of  the  wounds.  You 
may  take  into  consideration,  also,  the  fact  that  a  piece  of  bone 
was  found  in  the  club.  Now  you  will  see  that  no  one  of  these 
facts  proves  directly  that  that  club  was  used  in  killing  Simeon 
Sturtevant,  but  as  circumstantial  evidence,  they  have  strong 
tendency  in  that  direction,  from  which  you  may  infer,  and 
perhaps  you  will  infer,  as  beyond  all  question,  that  that  club 
was  used  in  the  killing  of  Simeon  Sturtevant.  If  you  cotne 
to  the  conclusion,  that  that  club  killed  Simeon  Sturtevant, 
that  then  becomes  a  new  fact  in  the  case,  which  your  mind:' 
may  lake  as  a  fact,  from  which  other  inferences  may  be  de- 
duced, if  other  fa<  ts  concur  with  it,  to  aid  you  in  making  such 
other  inferences.  But  the  fact  alone  that  that  club,  which  was 
found  in  the  field,  was  the  club  which  killed  Simeon  Sturte- 
vant, does  no!  help  you  at  all,  so  far  as  tracing  anything  to 
this  defendant  is  concerned.  It  helps  you  to  come  to  the  con- 
clusion u  hat  the  instrument  was  which  killed  Simeon  Sturte- 
vant, and  that  is  all  ;  so  that  in  order  to  ascertain  anything  in 
the  diic  tion  of  the  person  who  committed  the  act,  you  desire 
to  find  other  <  ircum  »tan<  es  to  put  with  this,  and  see  whether 
they  point  in  any  particular  direction ;  and  each  new  circum- 
stance adds  a  new  point  by  which  the  held  of  in  ition  is 
narrowed,  so  by  getting  a  greal  many  points  you  may  bring  il 
flown  to  a  small  compass,  and  say,  "The  fad  we  are  seeking 
lies  here,  within  this  narrow  compa  s,  and  therefore  our  in 
ve  tigations  in  thai  compass  will  probably  lead  us,  i1  we  can 
get  all  the  facts,  to  the  right  pei  n,  alt!  i  the)  do  nol 
sep;i  rat<  I  v  indi<  ate  whi » thai  1  id  on  i 

Vou  will  see  thai  the  offi<  ei  -  a<  1  upon  thi  ■  idea.  They 
find  thai  the  <  lub  1  orrespond  •  to  a  plat  e  in  a  carl  from  whi<  I) 
a  stake  is  absent,  and  it  lit  thai  pla<  e.  Vou  would  draw  the 
inference  from  this,  that  il  was  taken  from  that  place.  Il 
not  a  nece  iary  inference.  It  is  aided  by  the  further  evidence 
.,1  Mr.  Jefferson,  who  knows  something  aboul  the  cart,  and 
who  i\  ,  from  indicnl  ins  which  he  finds,  and  which  he  has 
described  to  you„  that  hn   :ut  thai  r»n  the  third  of  January 


346  INS  TR I  WEN  IS    c  W    E I '  I  DUNCE. 

evidence,  however,  present  a  subject  of  too  much  im- 
portance  to  be  dismissed  with  a  cursory  notice.  Con- 
sidered    in     tin-     abstract,   real     evidence,    apparently 

and  put  it  in  that  i  ait.  and  that  it  was  there  when  he  last  left 
it  at  Mrs.  Jossleyn's  house,  as  1  understand  it;  but  the  precise 
period  when  he  last  saw  it  is  not  in  evidence.  You,  therefore, 
one  p. 'Hit  further  towards  your  destination,  but  you  have 
not  vet  got  anything  that  touches  anyone  in  particular;  you 
have  only  narrowed  the  ground,  given  some  direction  to  the 
inquiry  which  should  result  in  finding  the  person;  because 
although  you  are  satisfied  that  this  club  came  from  that  cart 
me  time  after  the  third  of  January,  between  the  third  of 
January  and  the  fifteenth  of  Febuary,  anybody  passing  that 
way  might  have  taken  that  club,  and  might  have  left  it  where 
tiie  person  who  committed  this  offense  found  it.  The  person 
who  took  the  stake  from  the  cart  would  not  necessarily  be  the 
one  who  committed  the  offense. 

Then  you  take  other  circumstances.  If  you  are  satisfied, 
instance,  from  the  character  of  the  money  in  the  house, 
that  the  money  scattered  upon  the  ground  was  money  stolen 
that  night, — that  is  a  matter  of  which  you  may  or  may  not  be 
satisfied  by  the  inferences  which  you  may  draw  from  other 
;  responding  facts,  from  the  failure  to  account  for  it  in  any 
other  way, — if  you  take  that,  then,  as  money  that  was  stolen 
that  night,  and  you  take  the  mode  in  which  it  was  distributed 

indi(  ating  the  direction  in  which  the  person  who  com- 
mitted the  offense  that  night  went,  then  you  see  you  have 
another  circumstance  which  points  in  that  direction,  and  you 
are  to  give  it  such  weight  as  it  has,  not  merely  by  itself, 
but  in  <  oncurrence  with  the  other  facts  which  you  have  traced 
out. 

And  so  the  footprint.  The  footprint,  you  will  perceive, 
by  itself,  is  a  footprint  which  might  be  made,  perhaps,  by 
many  other  shoes,  no  one  knows  how  many.  Standing  by 
itself,  it  would  have  no  especial  force.  You  are  only  to  con- 
sider it  as  om-  of  those  surrounding  circumstances  which 
may  have  more  or  less  < >f  force,  according  as  you  find  it  tallies 
with  other  circumstances  in  one  conclusion  which  may  be 
arrived  at. 

in   further  illustration  of  this  same  idea,  I  may  make  a 
narks  upon  ;  iject  of  the  blood.      The  spots  which 

re  found  upon  the  overcoat  of  the  prisoner,  the  spots  which 
were  found  upon  his  shirt  collar,  the  spots  which  were  found 
upon   his  hat,  the  spots   which   were  found    upon  the   pillow- 


REAL    EVIDENCE.  347 

• 

indicative  of  guilt,  may  be  indebted  for  its  criminative 
shape  to  accident,  forgery,  or  the  lawful  action  of  the 
accused.  Here  it  must  not  be  forgotten,  that  some- 
case,  or  at  least  on  a  piece  of  cloth  from  a  pillow-case  from 
the  house,  the  spots  on  the  paper  about  the  bed  of  Simeon 
Sturtevant,  and  various  other  spots,  some  of  which  were  hu- 
man blood  and  some  of  which  were  blood  the  character  of 
which  is  to  be  ascertained,  were  examined.  Now,  the  blood 
upon  the  garments  of  the  prisoner  is  competent  evidence  upon 
the  question  whether  he  committed  the  offense.  Even  though 
it  be  not  shown  that  it  is  anything  more  than  blood,  you  are 
to  consider  it,  because,  if  he  has  blood  upon  his  clothing  the 
second  day  after  the  murder,  inferences  may  be  drawn  from 
it  which  will  be  stronger  or  weaker  according  to  the  character 
of  the  blood  found  upon  him,  its  position,  whether  there  is 
any  way  of  explaining  its  existence  there  otherwise;  and  if 
you  have  merely  the  fact  that  it  is  blood,  it  leaves  open  a  wide 
range  of  possibilities  that  are  consistent  with  innocence.  It 
may  be  the  blood  of  a  chicken,  it  may  he  the  blood  of  a  mam- 
mal, it  may  he  the  blood  of  a  man.  Now,  then,  if  you  pro- 
ceed and  can  by  any  satisfactory  means  show  that  it  is  not  the 
blood  ol  a  fov\  I  or  a  fish,  then  you  sec  you  have  narrowed  the 
range  of  investigation,  and  you  have  given  to  it  more  impor- 
tance, because  it  is  open  to  fewer  explanations  of  other 
soiii  from    which    it    may    conn-.      So,    it'  you   can     proceed 

further  and  show,  from  its  correspondence,  when  restored,  to 
the  blood  ot  human  kind  which  has  ln-m  dried  and  restored, 
that  it  is  human  blood,  then  the  fori  e  "t  it,  as  a  circumstam  e 
touching  the  defendant,  is  in<  rea  ed  Whether  thai  can  be 
done  or  not  is  a  matter  for  your  consideration,  upon  the  evi- 
dence whii  1 1  has  been  presented  to  you.  It  ii  can  be  done  and 
ha  i   been  done,   so   1  hal    you  an  d  thai    it    is  human 

blood,  then  it  is  a  <  in  uiir  tan<  e  of  mu<  h  more  importance  and 
nifii  .mi  e  than  if  it  remained  simply  as  blood  ;  more,  even, 
than  i!  it  remained  as  the  blood  oi  an  animal.  Y<>u  are  to 
ito  1  "ii  iderat  ion  the  evidem  e  in  regard  to  its  being 
human  blood,  and  give  it  weighl  ju  1  ai  1  ordin  ;  to  the  degree 
of  force  which  you  maybe  willing  to  give  il  in  you\  own 
mic  evidence  tending  to  show  that  il  is  human  blood.     I: 

it  1  iiown  to  youi   sati  fa<  tion  to  be  human  blood,  and  is 

shown  to  your  satisfaction  to  be  mammal  blood,  and  nol  the 
blood  of  fowls  or  ol  fishes,  then  you  will  give  it  thai  consid- 
eration.  It  it  is  merely  shown  to  be  blood,  and  nothing  more, 
you  wib  give  it    such   1  ition,  in   thai    widei    rai 


34S  INSTRUMENTS    OF    EVIDENCE. 

times  the  most  innocent  men  cannot  explain,  or  give 
any  account  whatever,  of  facts  which  seem  to  crimi- 
nate them;  ami  the  experience  of  almost  every  person 

possibilities  in  accounting  for  it,  as  you  think  it  is  entitled  to, 
merely  as  blood.  In  other  words,  the  degree  of  force  with 
which  this  should  weigh,  as  circumstantial  evidence,  in  con- 
nection with  other  evidence,  depends  upon  the  degree  of  cer- 
tainly with  which  you  can  narrow  down  its  character,  or  the 
strength  of  the  probabilities  which  you  can  bring  to  bear  upon 
the  question  of  its  character, — whether  merely  blood,  the 
blood  of  a  mammal  or  the  blood  of  a  human  being.  It  does 
not  prove,  alone,  the  guilt  of  the  defendant  ;  but  its  main 
force  depends  upon  the  consideration  whether  it  might  reason- 
ably be  accounted  for,  if  it  be  human  blood,  or  if  it  be  blood, 
upon  other  considerations,  or  whether  it  is  accounted  for  by 
supposing  that  the  prisoner  committed  this  deed,  and  can  be 
accounted  for  in  no  other  way. 

You  will  take  all  the  evidence  in  connection  with  each  one 
of  these  circumstances  into  consideration,  bearing  in  mind  that 
neither  of  the  cii  inces  is  necessarily  proof  of  the  guilt 

of  the  prisoner.  Each  one  of  the  circumstances  is  competent 
for  your  consideration  as  a  circumstance,  the  force  of  which 
will  depend  upon  its  agreement  or  coincidence  with  other  cir- 
cumstance ting  in  one  or  the  other  direction. 

;ard  to   the  possession   of  money.      It  is  a  general 

rule,  that  where  property  has  been  stolen,  and  it  is  afterwards 

found  in  the    po  n    of  a  person    who    is    not    its  rightful 

owner,  that  is  evidence  that  he  committed  the  theft.     Hut  you 

see  it  is   not  a  n  try  conclusion  ;  it  is  only  an   inference 

which  is  drawn  from  the  other  facts.      It  is  an  inference  drawn 

ii nst  him.  e.  if  he  were  not  the  thief,  he  can  generally 

tell  where  he  got  it.      It    is   an    inference    stronger  or  weaker 

iing  to  the  length  of  time   which   has   elapsed   since  the 

-f  the    ;.  ly,  and   the    ease   with    which   it    migUt    be 

transmitted  from  one  to  another  without  the  capacity  to  recol- 

e  from. 

Now,  money   is  no:  tly  like  a  horse,  or  a  cow,  or  any 

other  article  of  that  sort  which    might   be  stolen  and  found  in 

the  .a  of  another  person.     The  possession  of  money 

by  the  prisoner  is  a  circumstance,  and   you  are  to  treat  it  as 

iny  other  circumstance.     You  are  to  treat   it  just 

trial  was  lor  theft  instead  of  for  murder.     So  the  eir- 

e  of  the  money  which  he  had  is  a  circumstance  to  be 

taken  with  the  other  circumstances  upon  the  question   which 


REAL     EVIDENCE.  349 

will    supply    him     with    instances     of    extraordinary 

occurrences,  the    cause  of  which  is,  to    him  at    least, 

completely  wrapt  in   mystery.      1.  Accident.     The  a,p- 

you  are  to  consider.  And  in  that  connection,  it  is  important 
for  you  to  inquire  whether  he  was  possessed  of  money  the 
week  before,  or  whether  lie  was  without  funds.  If  he  was 
without  funds  the  week  before,  and  the  day  after  this  murder, 
or  the  second  day,  was  in  possession  of  a  large  amount  of 
funds,  that  circumstance,  unexplained,  if  there  was  a  loss  of 
money  at  the  house,  is  a  strong  circumstance  tending  to  show 
his  guilt.  Then  you  will  consider  the  character  and  satisfac- 
toriness  of  the  explanation  which  he  may  have  given  of  tlie 
possession  of  money  on  Tuesday  which  he  had  not  the  week 
before,  if  you  are  satisfied  that  he  did  not  have  it  the  week 
before.  In  this  connection,  as  bringing  it  more  nearly  to  the 
case  of  the  theft  of  a  cow  or  a  horse,  you  will  have  to  con- 
sider any  peculiarity  this  money  had,  and  its  correspondence 
with  any  money  which  was  in  the  house  of  the  Sturtevants. 

I  need  not  go  into  these  matters  in  detail.  My  purpi  e 
was  not  to  tout  h  upon  the  question  of  the  force  of  them,  but 
to  call  your  att<  ntion  to  the  relation  which  each  circumstance 
has  to  the  question  you  are  in  iting.     If  you  are  satisfied 

that  this  money  which  he  had   was  of  su<  h  a  peculiar  charac- 

tei   that  he  would  nol   be  likely  to  l)i'  iii  possessi  moJ   it,  except 

from  the  thefl  in  this  hou  e,  then  it    Is  a  strong  <  ircumstan 
II,  |:  er,  tin-  money  that  he  had  was  of  the  kind  which  was 

in  general  circulation  a1  the  time,  then  the  peculiarity  ol  the 
in, .11.  to  have   fori  e.     If  \  ou  are  s  iti  Bed  thai  he  had 

no  money  the  week  before,  and  had  a  large  amount  on   !>■ 
day,  then,  unle    ;  he  gives  some  account  of  a  sudden  acquisi- 
tion, ii  i    a    '  roi  um  tarn  e  w  hii  h  j  ou  may  consider.     It, 
in  at temj                       unl    for   the    po         ion   of  I  he   monej , 
whether  as  to  its  amount  or  its  peculiarity,  he  hai    given  un- 
liable ai  1  ounl  ai  1  ounts,  ai  counts  which   were  nol 
Li  tory  and  are  nol  probably,  \  ou  ma)  tak  i  1  hai  into  con- 
sideration  ;  because  an  innoci  in  ordinarily  has   no  occa- 
.11  to  give  a  wroii            um  ol   w  hai  i    in  hi  >n. 
Bui  in  this  connection,  you   musl    take  into  con  ideration 
the  fai  t,  thai  a  man  w  h           pprchen    v?  ol  a  <  harge  of  ci  ime 
i  .  nol  always  gifted    with   thai                                     mind  and 
trage  whi<  h  enable  •   him   to    tell     toi  ie  -    whi<  h    are   thoi 
oughly    <  on               with    the    ti  11th  an  1   with    his   innoi  1  1 

You  are  to  take  inl n  >n  how  far  he  may  have  bi 

influenced  by  any  fear  oi  this  ;orl      You  an  al  0  to  take  into 


350  INSTRUMENTS     OF    EVIDENCE. 

pearance  of  blood  on  the  clothes  of  an  accused  or 
suspected  person,  may  be  explained  by  his  having,  in 
the  dark,  come  in  contact  with  a  bleeding  body,  (g) 

( * )  See  the  Case  of  Jonathan  Brad-  having  beep  found  stained  with  blood 

ford.Theorj        I       .Proof,  Appendix,  a  fact  which  he  dclared  his  inability  to 

case    7.     In    Chambers's     Edinburgh  account  for  ;  and  which  was  afterwards 

Journal   also,  for    nth    March,   1837,  discovered    to   have   been   occasion*  d 

there  is  a  case  where  part  of  the  evi-  by  his   bedfellow  having  a  bleeding 

deuce   against    a    man    charged    with  wound,  of  which  the  prisoner  was  not 

murder,  consisted    in    his   night-dress  aware. 

consideration  the  suggestions  which  have  been  made  arising 
from  the  fact,  that  there  were  other  suspicions  against  him  as 
to  money,  and  see  whether,  taking  all  these  suggestions  into 
consideration,  they  account  for  any  discrepancies  in  his  state- 
ments with  the  truth,  as  you  are  satisfied  the  truth  is,  or  for 
anv  improbable  explanations. 

The  evidence  as  to  the  loss  of  money  by  Mr.  White  was 
excluded,  because  there  seemed  to  be  no  evidence,  and  no 
proffer  of  evidence,  to  connect  the  prisoner  with  the  loss  par- 
ticularly, except  his  own  statements,  which  are  not  competent 
:  the  pi  rpo  e— I   mean  his  own  statements  elsewhere.     The 

s  of  money  by  Mr.  White,  in  the  opinion  of  the  court,  did 
not  tend  to  ai  count  for  the  possession  of  money  in  his  hands, 
any  more  than  the  loss  of  money  by  any  one  in  the  neighbor- 
hood. There  1  as  been  money  enough  lost,  every  one  knows, 
in  the  community,  in  years  past,  to  account  for  any  amount  of 
money  in  tin  ession  of  any  one.     Therefore  that  evidence 

was  not  admitted  to  a<  ounl  for  the  money  found  in  his  pos- 
ii.  Bui  the  prisoner  has  a  right  to  the  benefit  of  the 
suggestion  that  he  might,  either  by  honest  or  dishonest  means, 
have  acquired  this  money  elsewhere.  You  are  to  take  into 
□sideration  all  the  suggestions  that  have  been  made  about 
his  acquiring  means  in  an  honest  manner;  you  are  to  take 
into  consi  leration  the  suggestions  that  have  been  thrown  out 
that  he  had  acquired  some  in  a  dishonest  manner,  other  than 
this  :  and  it  these  explain  any  of  the  discrepancies  of  his 
statements  to  the  of!  as  to  this  money,  he  is  entitled  to 

the  benefit  of  the  suggestion,  because  he  is  entitled  to  what- 
ever raises  a  doubt  in  your  minds. 

'1  he  confessions  of  the  prisoner,  obtained  in  the  mode  these 
were  obtained,  the  court  thought  were  competent  to  he  ad- 
mitted here  against  him  ;  but  it  is  due  to  him  to  say,  that 
confessions  by  one  tinder  arrest,  or  one  charged  with  an 
offense,  or  a ne  who   :s  su  i  to  scrutiny  and  .surveillance. 


REAL    EVIDENCE.  351 

Under  this  head  come  those  cases  where  the  appear- 
ance is  the  result  of  irresponsible  agency  :  as  where 
the  act  has  been  done  by  a  party  in  a  state  of  sonnam- 

are  always  to  be  scrutinized  carefully,  lest  he  may  be  misun- 
derstood in  his  statements,  or  the  interrogator,  from  zeal,  or 
preoccupation  of  mind  as  to  the  bearing  of  those  statements, 
may  either  understand  them  incorrectly,  or  report  them  incor- 
rectly. Here  they  are  competent  evidence,  and  you  are  to 
consider  them  under  all  the  circumstances  in  which  they  were 
made,  and  see  how  far  they  tend  to  show  guilt,  and  how  far  they 
are  to  be  explained  by  anything  in  the  circumstances  of  the 
prisoner  when  he  made  them,  which  weakens  or  strengthens 
their  force. 

The  omission  of  the  prisoner,  as  I  have  already  suggested,  to 
explain  any  facts  which  bear  upon  him  personal  ly,  may  be  taken 
into  consideration  just  so  far  as  you  think  it  reasonable!' 
expect  that  he  would  have  explained  them  if  lie  were  innocent. 
It  is  often  beyond  the  [tower  of  a  man  to  explain  a  fact  which 
bears  againsl  him.  The  mere  omission  to  explain  a  fact 
which  app  1  rs  against  him  is  not  of  itself  evidence  against 
him,   I  the   burden  is  all  the  time  upon  the  government 

o  lurnish  you  the  evidence  upon  which  to  convict  him,  be. 
/oiid  a  reasonable  doubt.  Hut  when  a  fact  which  bears  upon 
him  pei  onally  is  brought  to  his  attention,  and  ii  is  such  a 
fact   a  1   think  he  may  reasonably  be  expected  to  explain, 

and  would  explain  if  he-  were  innocent;  that  is,  if  it  may 
rea  onably  be  supposed  thai  the  explanation  would  be  within 
his  power,  and  he  fails  to  produce  it  ;  then  that  is  to  be  taken 
into  1  ion,  and  to  bear  against  him  just  so  far  a    you 

think  that  failure  is  inconsistent  with  innocence  and  indicative 
ol  guilt,  And  that  consideration  you  are  to  apply  to  his  omis- 
sion to  pro  uce  his  wife  a  i  a  witness.  If  von  think  that,  il  he 
had  been  innocent,  she  would  have  been  able  to  prove  Iris  in- 
nocenci  then  the  non-production  ol  hi  irife  is  ground  oi 
inference  thai  her  production  would  nol  establish  any  facl 
favorable   1  1   him.     Von   have  heard  t! 

insel,  and  it    i    right  for  you  to  take  into  consideration  all 
tions  ax  to  1  he   1 .  1    m  ol  hei   absence      (  M 

coui  ••   it  would  be  a  severe  trial  foi  hei  1 mc here  on  such 

an  oc<  •    01  this,  and  if   la-r   evidence  would    have  been 

rely  m      tive,  even   though,  so  fai    a     it  went,  it  would  be 
con  istenl    with  his    innocence,  the  prisonei   mi  II  foi 

bear    to    produce    it.     Bui    vou    will    considi  n   all  the 

circum  •  ow  far  his    omission   to   produce  her 


INSTRUMENTS    OF    EVIDENCE. 

bulism ;  (A)  or   as    in    the   case   of  the    unfortunate 
person  in  France,  who  was  executed  as  a  thief,  on  the 

strength  of  a  number  of  articles  of  missing  silver  hav- 

(//)  Cases  of  this  nature  have  occur-  awakened  by  the  noise,  got  out  of  the 

Med.  Ttiiisp.  of  Insan-  bed,  and,  by   the   light   of   the  moon, 

-;    Matth.de  Criminib.  beheld  the  sleeper  give  several  stabs 

j.  ,:   i  ;  ;  and   Taylor,  with  a  knife  on   that  part  of  it  which 

I.   furisp.  789,  790,  4th   ed.     Two  his  companion  had  just  quitted  (Her,- 

•n  hunting  during  the  vcy's  Meditations  on  the  Night,  note 

day  sle]  I  er  at   night.     One  of  35).     Suppose   a   blow    given    in    this 

thein  «.!  ring   the   chase   in   His  way   had   proved   fatal,   and   that   the 

dream,  and  imagining  himself  present  two    men    had    been    shown    to    have 

at    the   dea:h   of    the   stag,  cried   out,  quarrelled  before  retiring  to  rest  ! 

"I'll  kill  him,  I'll  kill  him!"  Theother, 

that  her  production  here  would  not  aid  him,  and,  if  it  would 
not  aid  him,  how  far  it  is  a  ground  for  any  inference  to  the 
contrary.  As  I  said,  you  must  take  into  consideration  all  the 
tiotis  which  are  made  in  regard  to  her  absence,  and  if 
suggestions  have  not  been  made,  you  will  take  into  consider- 
ation those  which  occur  to  your  own  minds,  including,  also, 
the  position  in  which  both  the  prisoner  and  his  wife  are 
pla<  ■ 

I  have  uone  over  the  evidence,  not  to  collate  it,  not  to 
show  how  strongly  it  may  bear,  not  to  connect  it,  but  to  show 
in   what    ;  t  it  is  to   be  taken   by  you  as  bearing  directly, 

and  in  what  respect  it  only  establishes  some  collateral  fact. 
heard  the  arguments  of  counsel  on  both  sides  as  to 
its  force,  as  to  its  connection,  as  to  the  truth  of  the  evidence 
by  which  the  guilt  of  tin;  prisoner  is  sought  to  be  established, 
and  you  will  give  to  the  arguments,  and  to  the  evidence  as 
yon  heard  it.  such  consideration  as  you  think  is  due  to  them, 
with  the  aid  ol  the  'ions,  as  to  the  bearing  of  the  legal 

sumptions,  which  1  have  suggested. 

All  the  (  ircumstances  which  have  been   called  to  your  at- 

tion  arc  to  be  treated  in  their  relation  to  each  other,  and 
jrou   an-  I  not  whether  each  one  may  be  explained  away, 

nol  guilt,  but  whether  all  together 

point    in  su<  h   a  ion   as  to   indicate  one  result  only,   and 

that   result  I  It  of  the   prisoner.     If  it  does  so,  beyond  a 

r  minds,  then  it  is  your  duty  to  find 
him  L^uilt  t  fails  to  do  so,  if  it  points  elsewhere,  or  if  all 

wh  11111  is  not  enough  to  remove  from  your 

minds  sc.  ail  reasonable  doubts,   as  to  his   being 

the  ted  the  offense,  then  it  is  your  duty  to 


RE  A  L     E 1 1DEXCE.  3  5  3 

ing  been  found  in  a  place  to  which  he  alone  had 
access,  and  which  were  afterwards  discovered  to  have 
been  deposited  there  by  a  magpie,  (z) 

(;')  3  Benth.  Jud.  Ev.  49  ;  Bonnier,  Traite  des  Preuves,  £  647. 

say  that  he  is  not  guilty,  because  lie  is  not  guilty  unless  the 
government,  by  the  evidence  which  they  have  produced  here 
before  you,  have  sustained  the  burden  upon  them,  which  is  to 
satisfy  your  minds,  beyond  a  reasonable  doubt,  that  this  de- 
fendant committed  the  offense  of  rubbing  this  house  and 
murdering  Simeon  Sturtevant.  If  you  are  satisfied,  from  all 
the  evidence,  that  he,  and  no  one  else,  committed  this  offense, 
or  that  he  committed  it  with  some  one  else, —  for  it  is  imma- 
terial whether  he  committed  it  alone  or  with  some  one  else,  if 
he  was  engaged  in  it, — if  you  are  satisfied,  beyond  a  reason- 
able doubt,  that  all  the  evidence  points  to  him,  that  there  is 
no  reason  to  suppose  that  there  is  any  one  else  to  whom  the 
evidence  would  apply,  then  the  government  have  sustained 
that  burden  ;  and  your  duty  is  fulfilled  by  simply  declaring 
him  guilty.  If  they  have  failed  to  sustain  that  burden  in  all 
respects,  so  as  to  remove  from  your  minds  ;ili  reasonable 
doubt,  then  it  is  your  duty  to  find  him  not  guilty.  II,  as  I  be- 
fore said,  you  find  him  guilty  of  murder,  you  will  indicate,  in 
your  verdii  t,  whether  it  is  murder  in  the  first  degree  or  in  the 
second  d< 

Mr.  Harris:  I  desire  your  honor  to  qualify  one  remark 
which  was  made  in  the  charge,  which  was  this:  that  if  the 
evidence  poini  to  the  prisoner  in  such  a  manner  that  it  seems 
to  require  ol  him  an  explanation,  and  In-  has  n"t  made  it, 
then  the  jury  may  draw  certain  conclu  ions.  What  [desire 
■  mi  honor  will  say  to  the  jury  thai  in  that  remark 
you  did  not  intend  to  imply  thai  it  devolved  upon  the  pi 

upon  the     tand,  to  explain  it. 

Wells,  J. : — Thank  you.     I  intended  to  and  I  should 

i,  because  the  statute  expressly  requires  it.     In  all  thi 

is  to  hi    failure  to  explain,   you   mu  t    cai   fully 
exclude  a  tions  thai   would    require  him   to  |    >  upon 

the  stand  :  I  1  .  although  he  may  go  upon  the    tand,  il   i 

a  privi  vdiich  a  pi  rarely  takes,  and  which,  under 

the  advici  un  el,  he  may  dei  line  to  take,  without  any  in- 

■ain  t   him   1  »n    a<  •  ■  »unl   oi  his  m >t    ■  ■       ■    upon  the 
rid.     'I  herefi  »rc,  when  I    aid  1  hal  if  an)  him  is 

brought  to  your  attention   which    you  think   he  might  expla 
if  re  inno<  ent,  and  can  r<  bly  be  <  ted  to  < 

23 


354  INSTRUMENTS    OF    EVIDENCE. 

203.  2.  There  is  no  subject  in  the  whole  range  ol 
judicial  proofs,  which  demands  more  anxious  attention 
than  the  forgery  of  real  evidence.  It  is  in  some  degree 
analogous  to  the  subornation  of  personal  evidence, 
being  an  attempt  to  pervert  and  corrupt  the  nature  o( 
things  or  real  objects,  and  thus  force  them  to  speak 
falsely.  (/&)  The  presumption  of  guilt  afforded  by 
the  detection  of  a  forgery  of  real  evidence,  is  a  different 
subject,  and  is  based  on  the  maxim,  "  Omnia  praesu- 
muntr.r  contra  spolitorem"  (/) — its  weight,  as  an  in- 
formative hypothesis  respecting  real  evidence  in  gen- 
eral, being  all  that  comes  in  question  at  present. 

204.  Forgery  of  real  evidence  may  have  its  origin 
in  any  of  the  following  causes :  1.  Self-exculpation. 
2.  The  malicious  intention  of  injuring  the  accused,  or 
others.  3.  Sport,  or  with  the  view  of  effecting  some 
moral  end. 

205.  1.  Self-exculpative  forgery  of  real  evidence. 

(k)  3  Benth.  Jud.  F.v.  50.  (/)   Infra,  bk.  3,  pt.  2,  ch.  2. 

plain,  and  lie  does  not  explain  it.  you  may  draw  the  inference 
that  the  fact  exists  unfavorably  to   him,   I    intended   that  you 

add  exclude,  in  considering  whether  it  is  reasonable  to  ex- 
pect him  to  explain  it,  any  idea  of  his  explaining  it  by  his  own 
personal  testimony.  If  there  are  any  facts  which  tell  against 
him,  and  which  can  only  be  explained  by  himself, — that  is, 
which  no  one  else  could  be  brought  to  explain,  or  which  he 
by  his  knowledge  could  not,  unless  he  went  upon  the  stand, 
explain, — you  will  not  draw  any  inference  against  him  because 
he  does  nit  go  upon  the  stand  himself.  But  so  far  as  he  had 
to  explain  any  facts  brought  against  him,  you  will 
asider  how  far  the  explanation  is  satisfactory;  and  if  he 
has  failed  to  give  a  satisfactory  explanation,  or  given  a  false 
explanation,  then  you  will  consider  that.  You  will  be  careful 
to  ex<  hide  any  inference  against  him,  because  he  does  not 
explain  by  going  upon  the  Stand  here  in  the  trial. 

The  jury,  after  an  absence  of  two  hours,  found  a  verdict  of 
guilty  of  murder  in  the  first  degree,  upon  which  sentence  of 
death  was  subsequently  imposed.     He  was  executed  May  7,. 

5- 


'     REAL     EVIDEXCE.  355 

An  excellent  instance  of  the  danger  to  be  apprehended 
from  this  source  is  given  by  Sir  Matthew  Hale,  in  a 
passage  which  is  very  frequently  quoted.  After  ob- 
serving, that  the  recent  and  unexplained  possession  of 
stolen  property  raises  a  strong  presumption  of  larceny, 
he  tells  us  of  a  case  tried,  as  he  says,  before  a  very 
learned  and  wary  judge,  where  a  man  was  condemned 
and  executed  for  horse-stealing,  on  the  strength  of  his 
having  been  found  upon  the  animal  the  day  it  was 
stolen  ;  but  whose  innocence  was  afterwards  made 
clear  by  the  confession  of  the  real  thief;  who  ac- 
knowledged that,  on  finding  himself  closely  pursued, 
he  had  requested  the  unfortunate  man  to  walk  his 
horse  for  him  while  he  turned  aside  upon  a  necessary 
occasion,  and  thus  escaped,  (m)  This  species  oi 
forgery,  however,  is  not  confined  to  criminals.  It 
sometimes  happens  that  an  innocent  man,  sensible 
that,  though  guiltless,  appearances  arc  against  him, 
and  not  duly  weighing  the  danger  of  being  detected 
in  clandestine  attempts  to  stille  proof,  endeavors  to 
get  rid  of  real  evidence  in  such  a  way  as  to  avert  sus- 
picion from  himself,  or  even  to  turn  it  on  some  one 
An  extremely  apt  illustration  is  to  be  found  in  the 
Arabian  Nights'  Entertainments,  ( // )  where  the  body 
of  a  man,  who  had  died  by  accident  in  the  house  of  1 
neighbor,  was  conveyed  by  him  -under  the  apprehen- 
>n  of  suspicion  of  murdei  in  the  evenl  of  the  •  orpse 
being  found  in  his  house-  -into  the  house  of  anothei 
neighbor;  who,  finding  il  there,  and  acting  under  the 
influence  of  a  similar  apprehension,  in  like    mannei 

(m)  2  Hale,  P.  1  I   ,!--'t  of  1  >n   Moulin,  Ch  in 

conviction  o<    urred  in  Sun  •■  in  1  -  .•;.      I     ;,,;'  J 

he  Fatal  rc-ult  w  1  ft, 

i  iill.  Wills.  Circ.  ! 

ntcof  John  1  1  the  little  hun<  bl 

f  I1  P     if.    Vpp-,    '•'■'; 


INSTRUMENTS    OF    EVIDENCE. 

transmitted  it  to  a  third  ;  who,  in  his  turn,  shifted  the 
possession  of  the  corpse  to  a  fourth,  with  whom  it  was 
found  by  the  officers  of  justice. 

206.  2.  The  forgery  of  real  evidence  may  have 
been  effected,  with  the  malicious  purpose  of  bringing 
down  suffering  on  an  innocent  individual.  The  most 
obvious  instance  is  to  be  found  in  a  case,  probably  of 
more  frequent  occurrence  than  is  usually  supposed — - 
namely,  where  stolen  goods  are  clandestinely  de- 
posited in  the  house,  room,  or  box  of  an  innocent 
person,  with  the  view  of  exciting  a  suspicion  of  lar- 
ceny against  him  ;  (0)  and  a  suspicion  of  murder  may 
be  raised  by  secreting  a  bloody  weapon  in  the  like 
manner,  (p)  In  the  ease  of  Le  Brun,  (jf)  who  was 
accused  of  having  murdered  a  lady  of  rank  to  whom 
he  was  servant,  the  officers  of  justice  were  charged  by 
i  s  advocates  with  having  altered  a  common  key, 
found  in  his  possession,  into  a  master  key,  in  order  to 
make  it  appear  at  the  trial,  that  he  had  a  facility  for 
committing  the  murder  which  he  really  did  not 
possess.  "Another  remarkable  example,"  says  Mr. 
Arbuthnot,  in  the  preface  to  his  Reports  of  the  Fouj- 
daree  Udalut  of  Madras,  (r)  "is  related  in  a   Report 

■Tilly  published  on  the  Wellicade  Jail  at  Colombo 
in  Ceylon.  A  man  named  Scllapa  Chitty,  of  the  class 
termed    Xattacotie,  reported  wealthy,  and   largely  en- 

(o)  In    the    Preface  to    Mr.  Arbuth-  quently  re-orted  to  by  the  native  offi- 

f  ihe   Court  of  Fouj-  cers  of  police  ;  while  the   production 

daree  Udalut  of  Madras,  Madras  1851,  by  the    police,  from  the  houses  of  ac- 

p.  xlii.  is  the  following  passage:    "In  cused  persons,  of  articles  which   are 

the  an;                 nminal  justice  in  this  really  their   property,  but  are  alleged 

lances   of  this  species  of  to    have    been    obtained    by    theft    or 

for^'  •               d   evidence  are  far  from  robbery,  is  still  more  common." 

uncommon  ;  it  being  a  matter  of  no-  (/>)  Theory  of   Presumptive   Proof. 

y  that  the  cl                         cing  of  App.,  case  10. 

of  nr.j  j  (,y)  3  Rentli.  Jud.  Ev.  60. 

sons,    with   a   view    to   facilitate   their  (r)   Pages  xli.  xlii. 
conviction  of  a  crime  charged,  is  fre- 


RE  A  L    E 1 1DENCE.  3  5  7 

gaged  in  trade,  charged  his  neighbor  and  rival  in 
business,  with  causing  the  death  of  a  Malabar  cooley, 
by  burning  and  otherwise  ill-treating  him  ;  whereas  it 
was  found  that  the  man  had  died  a  natural  death,  and 
that  the  prisoner,  together  with  a  relative  and  servant 
had  applied  fire  to  several  parts  of  the  body,  and  de- 
posited it  on  the  premises  of  the  accused;  after  which 
he  gave  notice  to  the  police,  and  charged  the  innocent 
party  with  the  murder.  The  case  seemed  clear,  and 
the  accused  would  have  been  tried  on  the  capital 
charge,  had  not  the  medical  gentleman,  on  the  in- 
quest, observed  the  unusual  appearance  of  the  burnt 
parts,  and  finally  discovered  that  the  injuries  had  all 
been  inflicted  on  the  body  after  death."  The  numer- 
ous cases  that  have  occurred  of  persons  inflicting 
wounds,  often  of  a  serious  nature,  on  themselves,  with 
the  view  of  attaining  some  end  (s) — in  some  in- 
stances for  the  purpose  of  enabling  them  to  accuse 
hated  individuals  (7) — should  induce  tribunals  to  be 
more  on  their  guard  against  the  forgery  of  real  evi- 
dence, than  they  commonly  are.  And,  as  though  no 
limit  could  be  assigned  to  human  wickedness,  it  is 
sail!  that  even  suicide  has  been  committed  with  a 
like  view,  (it)  The  following  application  of  this 
kind  of  forgery  is  likely  to  be  made,  in  countries 
where  the  legitimate  principles  of  evidence  are  either 
not  wrll  understood,  or  not  duly  observed,  We 
allude  to  the  artifii  e  <»i  sending  to  tin-  pei  on  whom 

I  ■    1  •  •      with    bavin  ipted    t..     tnu      1 

serj.,  ji  .  Mdl.  Jurisp.  32      I 

(«)  We  havi  hei 

1  imi        "f  that   kind  ;  and  thai 

nev-  1  '  17,  m  ill      the  Fren<  li   I 

1 
who,  •  r,  in  order  ta  throw  >>n  t he 

■ili  her,  "f     having 

lliro  a  ly.  and  then 


;3s  fNSTRUMENTS    OF    EVIDENCE. 

\\  iv, 1  to  injure  letters,  in  which  cither  the  mode 

of  committing  some  crime  is  discussed,  or  allusion  is 
made  to  a  supposed  crime  already  committed ;  and 
then  procuring  Ins  arrest,  under  such  circumstances 
thai  the  document  may  be  found  in  his  possession. 
"  On  such  an  occasion  "  (naming  it),  "  my  dear 
friend,  you  failed  in  your  enterprise;"  an  enterprise 
(describing  it  by  allusion)  of  theft,  robbery,  murder, 
treason  ;  "  on  such  a  day,  do  so  and  so,  and  you  will 
succeed."  (x)  "  In  this  way,"  observes  Bcntham,  "  so 
far  as  possession  of  criminative  written  evidence 
amounts  to  crimination,  it  is  in  the  power  of  any  one 
man  to  make  circumstantial  evidence  of  criminality 
in  any  shape  against  any  other."  (  r) 

207.  It  sometimes  happens  that  real  evidence  is 
forged  with  the  double  motive  of  self-exculpation, 
and  of  inducing  suspicion  on  a  hated  individual,  (z) 
And,  lastly,  it  is  to  be  observed,  that  this  species  of 
forgery  may  be  accomplished  by  force  as  well  as  by 
fraud;  e.g.  three  men  unite  in  a  conspiracy  against  an 
innocent  person  :  one  lays  hold  of  his  hands,  an- 
other puts  into  his  pocket  an  article  of  stolen  prop- 
erty which  the  third,  running  up  as  if  by  accident 
during  the  scuffle,  finds  it  there,  and  denounces  him  to 
justice  as  a  thief,  (a) 

208.  3.  Forgery  of  real  evidence  committed  cither 
in  spun  or  with  the  view  of  effecting  some  moral  end. 
As  an  instance  of  this  may  be  cited  the  story  of  the 
patriarch  Joseph,  who,  with  a  view  of  creating  alarm 
and  remorse  in  the  minds  of  his  guilty  brothers  for 
their  conduct  towards  him  in  early  life,  caused  a  silver 
cup  to  be  privately  hid  in    one  of   their  sacks,   and 

(jc)  3  Benth.  Jud.  Ev.  44.  parson   in   5  Causes  Celebres,  442,  ed 

()'  Richer,  Arnsterd.  1773. 

(*;  See    the   case    of     the    Flemish  (a)  3  Benth.  jud.  Ev.  39. 


REAL     EI 1DENCE.  3  5  9 

after    they  had    gone   some  distance  on    their    jour- 
ney, had  them  arrested  and  brought  back  as  thieves.  (£) 

209.  4.  The  other  infirmative  hypothesis  affecting 
real  evidence  remains  to  be  noticed  ;  namely,  that  the 
apparently  criminative  fact  may  have  been  created  by 
the  accused,  in  the  furtherance  of  some  lawful,  or  even 
laudable  design.  This  is  best  exemplified  by  those 
cases  of  larceny,  where  stolen  property  is  found  in  the 
possession  of  a  person  who,  knowing  or  suspecting  it 
to  have  been  stolen,  takes  possession  of  it  with  the 
view  of  seeking  the  true  owner  in  order  to  restore  it, 
or  of  bringing  the  thief  to  justice  :  but  before  this 
can  be  accomplished,  becomes  himself  the  object  of 
suspicion,  in  consequence  of  the  stolen  property 
being  seen  in  his  possession,  or  of  false  information 
being  Laid  against  him.  (c)  In  cases  of  suspected 
murder,  also,  stains  of  blood  on  the  person  or  dress 
of  the  accused  or  suspected  party,  ma)'  have  been 
produced  by  many  causes,  {d )  e.g.,  the  slaughter  of 
an  animal,  an  accidental  bleeding  from  the  nose  (e)  a 
surgical  operation,  {J  )  ecc. 

210.  Real  evidence,  while  truly  evidentiary  of 
guilt  in  general,  may  be  fallacious  as  to  the  quality  of 
the  crime.  The  recent  possession  of  stolen  property, 
for  in  tance,  standing  alone,  is  deemed  presumptive 
evidence   <w    larceny,  not   oi    the   accused   having  re- 

1    tin-    §  >o  Is  with   a  guilty  knowledge  of  their 

. .  j  et  seq.     Sic  3  [d.  lib.  5,  c.  ■; 

52.  1  In  I  ol    v.  i  haw, 

.-in    impre  lion  I        burgh    in   1721,  foi 

of  i<  on  circuit,  where      the    upposed  murder  ol   In    di 

a  pei  :  1  .1  public  hou  •  ,  f  the 

and  a  p  nt  took  1      I  ■  mt  him  ^ 

of  his  pack  with  |      thai  In-  •  bloody,  which  1 

it   to   Imii  u  hen  by  his  having    bl<  '1 

w;u  by  .hi   indict*      I. mi  •  it  ftd    tnc 

\.ient  fo  iniied.   Thci  <y  "I 

(,/)  Quintil.  Iil>.  5,  c,  I'ro  »f,  App 


360  INSTRUMENTS    OF    EVIDENCE. 

having  been  stolen.  ( ^)  And  there  can  be  little 
doubt,  that  many  persons  have  been  convicted  and 
punished  for  the  former  offense,  whose  guilt  consisted 
in  the  latter;  while  on  the  other  hand  justice  has 
often  failed  the  other  way — a  party  guilty  of  receiving 
stolen  property,  having  been  erroneously  indicted  for 
larceny.  (Jt)  This  imperfection  in  our  criminal  law 
was  remedied  by  the  1 1  &  12  Vict.  c.  46,  s.  3,  and  24 
&  25  Vict.  c.  96,  s.  92,  which  allow  counts  for  larceny 
to  be  joined  with  counts  for  receiving  goods,  knowing 
them  to  have  been  stolen.  (7)  So  where  a  person  is 
found  dead  and  plundered  of  his  property,  the  subse- 
quent possession  of  a  portion  of  it  may  induce  a  sus- 
picion of  murder,  against  a  party  whose  real  crime 
was  robbery,  (/c) 

211.  There  is  one  species  of  real  evidence  which 
deserves  a  more  particular  consideration,  namely,  the 
presumption  of  larceny,  arising  from  possession  by  the 
accused  of  the  whole  or  some  portion  of  the  stolen 
property.  Not  only  is  this  presumptive  evidence  of 
delinquency  when  coupled  with  other  circumstances; 
but,  even  when  standing  alone,  it  will  in  many  cases 
raise  a  presumption  of  guilt,  sufficient  to  cast  on  the 
accused  the  onus  of  showing  that  he  came  honestly  by 
the  stolen  property  ;  and  in  default  of  his  so  doing,  "t 
will  warrant  the  jury  in  convicting  him  as  the  thief. 
This  presumption  is,  not  only,  subject  to  the  infirm- 
ative  hypotheses  attending  real  evidence  in  general; 
but,  from  it-  constant  occurrence,  and  the  obvious 
dang'-r  of  acting  indiscriminately  upon  it,  it  has,  as  it 
were,  attracted  the  attention  of  judges,  who  have  en- 

(#)  R<  v.   I                         &  I'.  3gg  ;  (7)  See  also  14  &   15   Vict.   c.   100 

R.    v.   Oddy,   2    1                 C.   273.  per  s.  12. 

Alderson,  II.     See  R.  v.  Langmcad,  1  (/•)  See  R.  v.  Downing,  Wills,  Circ 

Leigh  &  C.  427.  439-  Evid.  137,  3rd  ed. 

(h)  See  1:.  :.  Collier,  4  Jurist,  703. 


REAL    EVIDENCE.  361 

deavored  to  impose  some  practical  limits  to  its  opera- 
tion, where  it  constitutes  the  only  evidence  against 
the  accused.  And  first,  it  is  clearly  established  that, 
in  order  to  put  the  accused  on  his  defense,  his  posses- 
sion of  the  stolen  property  must  be  recent  ;  (/ ) 
although  what  shall  be  deemed  recent  possession 
must  be  determined  by  the  nature  of  the  articles 
stolen — i.  e.  whether  they  are  of  a  nature  likely  to 
pass  rapidly  from  hand  to  hand ;  or  of  which  the  ac- 
cused would  be  likely,  from  his  situation  in  life,  or 
vocation,  to  become  possessed  innocently,  (m)  A 
poor  man,  for  instance,  might  fairly  be  called  to  ac- 
count for  the  possession  of  articles  of  plate,  jewels,  or 
rare  and  curious  books,  after  a  much  longer  time  than 
if  the  property  found  on  him  had  consisted  of  clothes, 
articles  of  food  suitable  to  his  condition,  tools  proper 
for  his  trade,  &c.  In  the  first  reported  ease  on  this 
subject,  (ti)  Bayley,  J.,  directed  an  acquittal,  because 
the  only  evidence  against  the  prisoner  was,  that  the 
stolen  goods  (the  nature  of  which  is  not  stated  in  the 
report)  were  found  in  his  possession  after  a  lapse  of 
sixteen  months  from  the  time  of  the  loss.  Where, 
however,  seventy  sheep  were  put  on  ;i  common  on 
the  iSih  of  June,  but  were  not  missed  till  November, 
and  tin-  prisoner  was  in  po  <>n  of  four  of  them 
in  0<  tober,  and  of  nineteen  more  on  the  23d  of  No- 
vembi  1,  the  same  judge  allowed  evidence  of  the  po 

ion  Of  both  tO    be    given,    (e)        111     the    snb.ei  |  n<  ill 

case  of  R.  v.  Adams,  (/)  when-  the  prisonei  was  in- 
dicted for  stealing  an  axe,  a  saw,  and  a  mattock,  and 

!  ..    '  11  1.    ird.   ed.  ;  5      B  C.    C.   235. 

East,  I'.  I  •'■ 

C.  C.  235  ;  a  Nn  ■"..  3  '  P 

following  nol  lL    '  v  (>l* 

(w)   2    Run-,    on    ' 
ed. ;   k.   .  .  I  .    '  </ 


rxs  tk  ( \u/:x  rs    ( '/••   /■:  i  'i dunce. 

the  whole  evidence  was,  that  they  were  found  in  his 
po;  'ii  three  months  after  they  were  missed,  Parke, 

J.,  directed  an  acquittal.  And  in  a  more  recent  case 
of  R.  v.  Cruttenden,  (</)  where  a  shovel  which  had 
been  stolen,  was  found  about  six  or  seven  months 
after  the  theft,  in  the  house  of  the  prisoner,  who  was 
not  then  at  home,  Gurncy,  B.,  held  that,  on  this  evi- 
dence  alone,  the  prisoner  ought  not  to  be  called  on 
for  his  defense.  In  R.  v.  Partridge,  (r)  however, 
where  the  prisoner  was  indicted  for  stealing  two 
"  ends  "  of  woollen  cloth,  {i,  c.  pieces  of  cloth  consisting 
of  about  twenty  yards  each),  which  were  found  in  his 
possession  about  two  months  afte  they  were  missed ; 
on  its  being  objected  that  too  long  a  time  had  elapsed, 
Patteson,  J.,  overruled  the  objection,  and  the  prisoner 
was  convicted.  Afterwards,  in  R.  v.  Hewlett,  (Y)  a 
prisoner  was  indicted  for  stealing  three  sheets,  the 
only  evidence  against  him  being,  that  they  were  found 
on  his  bed  in  his  house  three  calendar  months  after 
the  theft.  On  this  it  was  objected  by  his  counsel,  on 
the  authority  of  R.  v.  Adams,  that  the  prisoner  ought 
not  to  be  called  on  for  his  defense.  But  Wightman, 
J.,  said,  that  it  seemed  to  him  impossible  to  lay  down 
any  definite  rule,  as  to  the  precise  time  within  which 
a  prisoner  might  be  called  on  to  give  an  account  of 
th<  ession  of  stolen  property;  and   that  although 

the  evidence  in  the  actual  case  was  very  slight,  it  must 
left  to  the  jury  to  consider  what  weight  they  would 
attach  to  it.  The  prisoner  was  acquitted.  In  R.  v. 
(  >oper,  (/)  where  a  mare  which  had  been  lost  on  the 
17th  of  December,  was  found  in  the  possession  of  the 
prisoner  between  the  20th  of  June  and  the22d  of  July 

{q)  6  Jur.  267;  and  MS.,   Kent   Sp.  (s)  3  Russ.  on  Crimes,  216,  jth  ed. ; 

.2.  Salop  Sp.  Ass.  1343. 

[r)  7  C  &  P.  551.  (f)  3  Car.  &  K.  31S. 


REAL     EVIDENCE.  363 

following,  and  there  was  no  other  evidence  against 
him,  Manle,  J.,  held  the  possession  not  sufficiently  re- 
cent to  put  him  on  his  defense.  In  dealing  with  this 
subject  it  is  to  be  remarked,  that  the  probability  of  guilt 
is  increased  by  the  coincidence  in  number  of  the  arti- 
cles stolen  with  those  found  in  the  possession  of  the 
accused, — the  possession  of  one  out  of  a  large  number 
stolen  being  more  easily  attributable  to  accident  or 
forgery  than  the  possession  of  all.  (?/) 

212.  But  in  order  to  raise  this  presumption  legiti- 
mately, the  possession  of  the  stolen  property  should 
be  exclusive  as  well  as  recent.  If,  for  instance,  the 
articles  stolen  were  found  on  the  person  of  the  ac- 
cused, or  in  a  locked-up  house  or  room,  or  in  a  box  of 
which  he  kept  the  key,  there  would  be  fair  ground 
for  calling  on  him  for  his  defense;  but  if  they  were 
found  lying  in  a  house  or  room,  in  which  he  lived 
jointly  with  others  equally  capable  with  himself  of 
having  committed  the  theft,  or  in  an  open  box  to 
which  others  had  access,  this  would  raise  no  definite 
presumption  of  his  guilt,  (x)  An  exception  has  been 
said  t<>  exi  t,  where  the  accused  is  the  occupiei  of  the 
lion  e  in  which  stolen  property  is  found  ;  because,  it  is 
argued,  he  must  be  presumed  to  have  such  control 
over  the  house,  as  to  prevent  anything  coming  in  or 
being  1  iken  out  without  his  sanction.  As  a  founda- 
tion lor  civil  responsibility  this  reasoning  may  be 
correct;  but  to  conclude  that  the  mastei  of  .1  house 
is  guilty  of  felony,  on  the  double   presumption,  first, 

that  stolen  goods  I I  in  1  Ik-  house  were  pla  :ed  there 

b)  him  or  with   his  connivance;  and  mdly,  even 

supposing  they  were,  tli.it   he  was  the  thief  who  stole 

[m)  2  Ross.  1         614,    3rd    < 

4tli  ed. ;    per   Erie,  J.,   K.  v.   Brown,      note  (g);    1  1,    I-' v.    ig,   4th 

MS.;   Kent  Sum.  A<-s.  1851.  cd. 


3f,4  INSTRUMENTS    OF    EVIDENCE. 

them,  there  being  no  corroborating  circumstances,  is 
certainly  treading  on  the  very  verge  of  artificial  con- 
viction, ^y) 

213.  Indeed,  there  can  be  no  doubt  that,  in  prac- 
tice,  the  legitimate  limits  of  the  presumption  under 
consideration  are  sometimes  overstepped.  "  Nothing," 
remarks,  Bentham,  "  can  be  more  persuasive  than  the 
circumstance  of  possession  commonly  is,  when  cor- 
roborated by  other  criminative  circumstances:  noth- 
ing more  inconclusive,  supposing  it  to  stand  alone. 
Receptacles  may  be  contained  one  within  the  other, 
as  in  the  case  of  a  nest  of  boxes  ;  the  jewel  in  a  case  ; 
the  case  in  a  box  ;  the  box  in  a  bureau  ;  the  bureau  in 
a  closet  ;  the  closet  in  a  room  ;  the  room  in  a  house  ; 
the  house  in  a  field.  Possession  of  the  jewel,  actual 
possession,  may  thus  belong  to  half-a-dozen  different 
p  rsons  at  the  same  time  :  and  as  to  antecedent  pos- 
session, the  number  of  possible  successive  possessors  is 
manifestly  beyond  all  limit."  (z)  It  is  in  its  character 
of  a  circumstance  joined  with  others  of  a  criminative 
nature,  that  the  fact  of  possession  becomes  really  valua- 
ble and  entitled  to  c  nsideration,  whether  it  be  ancient 
or  recent,  joint  or  exclusive.  But,  whatever  the  nature 
of  the  evidence,  the  jury  must  be  morally  convinced  of 
the  guilt  of  the  accused,  who  is  not  to  be  condemned  on 
any  artificial  presumption  or  technical  reasoning,  how- 
ever true  and  just  in  the  abstract.1 

(_>-)  "Ilyaurait  ii  justice  flagrante,  la   une  marche  grossiere,  qui    appar- 

i    reputer    o  m  in    vol.    celui  S:nt   a    l'enfance    du    droit    penal." 

chezquil'ob  .erait  trouve\  ainsi  bonnier,  Trade  des   Preuves,  §  675. 

qu'on  le  faisail  ;'i  Rome  pour  la  repar-  See  also  Hume's  Crim.  Law  of  Scot- 

du    d<ilit.     Presumer    la  land,  vol.  1,  p.  11 1. 
culpa,>''                          les  circonstances  («)  3  Benth.  Jud.  Ev.  39,  40. 

qui  peuvent  n'etre  que  fortuites,  e'est 

h  of  legal  knowledge  which  is  of  more 
general  utility  than  that  which  regards  the  rules  of  evidence. 
The  nrst  point  in  every  trial   is  iblish  the   facts  of  the 


REAL     EVIDENCE.  365 

214.  When  the  case  against  the  accused,  is  suffi 

Ci^ntly  strong  to  warrant  his   being  called  on  for  his 

defense,  the  credit  due  to  any  explanation  he  gives  of 

case;  for  he  who  fails  in  his  proof,  fails  in  everything. 
Although  the  jurists  hold  the  law  to  be  always  fixed  and  cer- 
tain, yet  the  discovery  of  the  fact,  they  say,  may  deceive  the 
most  skillful.  No  work  has  as  yet  appeared  in  the  English 
language  on  the  theory  of  evidence;  and  the  nature  of  circum- 
stantial evidence  has  been  still  less  inquired  into.  The  object 
of  the  present  Essay  is  to  inquire  into  some  of  the  more 
general  principles  of  legal  proof,  and  particularly  into  that 
species  of  proof  which  is  founded  on  presumptions,  and  is 
known  to  the  English  lawyer  by  the  name  of  circumstantial 
evidence. 

Evidence  and' proof  arc  often  confounded,  as  implying  the 
same  idea  ;  but  they  differ,  as  cause  and  effect.  Proof  is  the 
legal  credence  which  the  law  gives  to  any  statement,  by  wit- 
nesses or  writings;  evidence  is  the  legal  process  by  which  that 
proof  is  made.  Hence,  we  say,  that  the  law  admits  of  no 
proof  but  such  as  is  made  agreeably  to  its  own  principles. 

The  principles  of  >-\  idem  e  are  founded  on  our  observations 
on  human  conduct,  on  common  life  and  living  manners;  they 
are  not  just  because  they  are  rules  of  law;  but  they  are  rules 
of  law  be<  au  e  they  are  just  and  reasonable. 

It  has  been  found,  from  common  observation,  that  certain 
circumstances  warrant  certain  presumptions.  Thus,  thai  a 
mother  shall  feel  an  affection  for  her  child,— that  a  man  shall 
be  influent  ed  by  his  interest, — thai  youth  shall  be  sus<  eptible 
of  the  passion  of  love, — are  laws  of  our  general  nature,  and 
grounds  ol  evidence  in  every  country.  01  the  two  women 
who  contended  for  their  righi  to  the  child,  she  was  declared 
to  be  the  mother  who  would  not  conseni  to  its  being  divided 
I  i  wixi  them.  When  Lothario  tells  us  thai  he  stole  alone,  at 
1    jht,  iato  the  1  hamber  of  his  mistn  h  11  with  the    I  u  ■  an 

grape,  and  high  in  blood!"     Cater  a  guts  nescitt 

As  the  principles  of  evidence  are  founded  on  the  observa- 
ii  .11  .  ol  what  we  have    een,  or  believed  to  have  been  pa 
in  real  life,  they  will  accordingly  bi  to  the  state  oi    the 

iety  in  whicl    wc  n  i"  the  mannei  -  and  habits  "I    the 

time        I  he  following   pa    age  in   I  enl    memoii  ■  >>t 

Philip  de  ( )omine  >.  I  b  0  1      pei  fe<  tly  n  ue,  1"  il  i 

i  onfirmed  b)  ral  state  of   manm 

at  the  period  when  he  wi  1  >i '•• 

Louis  X  I.  di  1 1  ibuted,  he  a  .  ei  1  1,  foi  1  01  rupl  pui  | 


366  /.V.n  TR I  'MEN  TS    t  >/•'    E 1 1  PUNCH. 

the  way  in  which  the  stolen   property  cafhe  into  his 
po«  i,  whether  thai  explanation  is  supported  by 

evidei  not,  is  altogether  for  the  consideration  of 

11  thousand  crowns  among  the  King  of  England's  officers 
thai  were  about  his  person,  paiticularly  to  the  chancellor,  the 

ter  of  the  rolls,  the  lord  chancellor,  &c. 

The  truth  dt'  this  narrative  has  never  been  called  in  ques- 
tion, because  il  is  given  by  an  historian  of  great  gravity  and 
character,  and  is  illustrated  by  the  manners  of  the  age-;  yet 
although  the  author  says  that  his  design  in  writing  of  these 
transai  tions,  is  to  show  the  method  and  conduct  of  all  human 
affairs,  by  the  reading  of  which  such  persons  as  are  employed 
in  the  negotiation  of  great  matters,  may  be  instructed  how  to 
manage  their  administrations,  we  should  find  it  difficult  to 
give  credence  to  such  facts,  if  related  of  any  modern  lord  high 
chancellor  or  officer  of  state  ^A  the  court  of  England.  Thus, 
the  same  presumptive  evidence  that  is  good  as  to  the  court  of 
Edward  IV.  and  the  era  of  1477,  is  altogether  extravagant  if 
applied  to  the  court  of  George  III.  and  the  beginning  of  the 
19th  century. 

The  oration  of  Cicero  for  Cluentius,  exhibits  evidence  of 
judical  corruption  which  can  only  be  credited  from   our  gen- 

I  knowledge  of  Roman  manners  at  the  era  of  the  facts 
which  he  describes. 

The  King  of  Siam  gave  credence  to  everything  which  a 
European  ambassador  told  him,  as  to  the  circumstances  and 
condition  of  Europe,  until  he  came  to  acquaint  him  that  the 
rivers  and  sea  were  occasionally  made  so  hard  by  the  cold  that 

■  pie  could  walk  on  them;  but  this  story  he  totally  disbe- 
lieved an'!  rejected,  as  entirely  repugnant  to  everything  which 
he  had  either  een  or  heard  ;  and  the  ground  of  his  disbelief 
was  perfectly  ration 

A  similar  principle  sways  our  belief  in  respect  to  the  act? 
of  individuals,  as  arising  in  the  society  and  period  in  whi<  h  we 
live.  We  always  refer  the  credibility  of  the  case  to  what  has 
fallen  within  our  own  observation  and  experience  of  men  and 
things.  We  readily  give-  credence  to  acts  of  common  occur- 
rence, and  are  slow  in  yielding  our  assent  to  the  existence  "f 
new  and   un.  -for  events.     When  a  wretch,  at   no  distanf 

I    in  affl  r<  umstances,  was  accused  of  having  stolen 

of  paper  in  a  shop,  the  judges  admitted  him  to 
bail  against  evidence,  because  the  charge  was  altogether  un- 
likely in  one  of  his  condition  in  life.  From  these  instances, 
we  may  safely  infer  that   the   principles   for   our  believing   o» 


REAL    EVIDENCE.  367 

the  jury.  And  here  it  is  necessary  to  point  attention 
to  an  important  distinction.  In  R.  v.  Crowhurst,  (a) 
which  was  an     indictment    for  larceny,  Alderson,   Bn 

(«)  I  Car.  &  K.  370. 

disbelieving  any  fact,  are  rather  governed  by  the  manners  and 
habits  of  society  than  by  any  positive  rule.  The  writers  on 
the  general  law  of  evidence,  such  as  Mascardus  and  Meno- 
chius,  have  accordingly  declared  that  all  proof  is  arbitrary, 
and  depends  on  the  feelings  of  the  judges. 

There  are  two  species  of  presumptive  proof:  the  first  is  the 
presumption  of  the  law,  and  the  second  the  presumption  of 
the  judge,  juryman,  or  trier. 

The  ] 'resumption  of  the  law  is  that  conclusion  which  the 
law  attaches  to  a  certain  species  of  guilt.  Thus,  that  he  who 
has  deliberately  and  willfully  killed  another,  has  done  so  from 
malice,  is  a  presumption  of  the  law.  But  how  far  he  who  has 
been  found  with  the  sword  in  his  hand  by  the  bodv  of  the  man 
just  killed,  did  or  did  not  give  the  mortal  stroke,  is  a  presump- 
tion to  be  made  by  the  jury,  and  is  not  determinable  by  any 
positive  rule  of  law. 

Tl"  tion   of  the  law,   Montesquieu    observes,  is 

preferable  to  that  of  man.  The  French  law  considers  every 
act  of  a  merchant,  during  the  ten  days  preceding  his  bank- 
rupt-  .         fraudulent;  this  is  the  presumption  of  the  law. 

Tip  mi  I  on,  1 1  ,  ode  has  widely  decreed  thai  when  the 

law,  on  account  of  circumstances,  shall  have  deemed  certain 
acts  fraudulent,  proof  shall  not  be  admitted  thai  they  were 
done  withoul  fraud.  And  in  our  own,  as  in  every  other  sys- 
tem ol  ■  H  lation,  a  variety  of  qualities  are  presumed  as  to 
different  p  and  things,  against  which  no  prool   shall   be 

allowed.      Certainty   is  the  great    object   oi  tion,  and 

nothing  could  be  established  bul  by  the  determination  of  some 
thing  a    already  fixed. 

All  pi  in  referen  t  already  known  and 

admitted,  what  is  doubtful  musl  be  proved  in  reference  to 
what  is  true. 

The   following    rules,   by    Quintilian,   proceed   upon   this 
priip   •    e,  but   they  are,  perhaps,  rather  curious  than  useful: 
One  th     r  is,  because  another  is  not ;    it  is  day,  therefore  it   is 
not  night .     <  me  thing    i  .  1  hei efi »i e  anot  hei    is;    th<    sun 
risen,  t  ire  it  is  day.     One  thing  is  not,  therefore  another 

is ;  it  is  not  night,  therefore  it  is  day.  One  thing  i  not,  th  re- 
fote  another  is  nol  :  he  is  not  rational,  therefore  nol  a  man 


368  INSTRUMENTS    OF    EVIDENCE. 

before  whom    the  case    was  tried,  thus  directed  the 

jury  --"  In  cases  of  this  nature  you  should  take  it  as  a 

neral  principle  that, where  a  man  in  whose  possession 

Eviden  ■  isdivided  into  positive  and  presumptive.  Positive 
evidence  is  where  the  witness  swears  distinctly  to  the  commis- 
'  n  oi  the  act  or  crime  which  forms  the  subject  of  the  trial. 
Presumptive  evidence  is  that  conclusion  which  the  jury  draw 
for  themselves,  from  circumstances  or  minor  Tacts,  as  sworn  to 
by  the  witnesses. 

Presumptions  are  consequences  drawn  from  a  fact  that  is 
known  in  serve  for  the  discovery  of  the  truth  of  a  fact  that  is 
uncertain,  and  which  one  seeks  to  prove.  But  no  presump- 
tion i  an  be  made  but  on  a  fact  already  known  and  ascertained. 
Thus,  it"  the  stains  of  blood  on  the  coat  of  one  tried  for 
murder,  are  to  be  presumed  as  evidence  of  his  guilt,  the  fact 
of  the  stains  being  occasioned  by  blood  must  be  first  distinctly 
ascertained;  the  one  presumption  cannot  be  made  to  aid  the 
other. 

The  stains  are  not  to  be  presumed  from  blood  because  he 
is  presumed  to  have  been  the  murderer;  nor,  on  the  other 
hand,  is  he  to  be  believed  the  murderer,  because  the  stains 
are  believed  to  be  from  blood;  for  this  is  reasoning  in  a  cir- 
cle, and  returning  back  to  the  point  whence  the  argument 
commenced,  in  laws,  the  argument  should  be  drawn  from 
one  reality  to  another,  and  not  from  reality  to  figure,  or  from 

ire  to  reality. 

Whilst  dwelling  on  the  general  head  of  proof,  it    may  be 

•per  to  inquire  in  what  does  proof  naturally  consist.  Is 
one  witness,  ace  >rding  to  the  principles  of  natural  reason, 
sufficient  to  give  legal  credence,  or  are  two  witnesses  neces- 
sary ? 

The  Roman  or  civil  law  has  required  two  witnesses  to  each 
separate  fa<  t. 

But  this  principle  did  not,  perhaps,  arise  from  the  dic- 
tates of  legal  prudence,  but  was  borrowed  from  a  text  of 
-   ripture;  "In  I  uth  of  two  or  three  shall   the  truth  be 

established."  :t  was  meant  merely  to  carry  reference 

to  cert  .dent   to   the    Christian    religion. 

But  the  principles  of  religion  are  happily  founded  on  higher 
evidence  than  is  necessary  to  guide  men  in  the  business  of 
common  life. 

The   incid  »f  commerce,  and  the  daily  intercouse  of 

mankind  require  .   )t  only  that  moral  certainty  which    we  are 

-rranted,  fiom   .    neral  observation,  to  confide  in.     It  were 


RE  A  L     E I  IDE  NCE.  569 

stolen  property  is  found,  gives  a  reasonable  account  of 
how  he  came  by  it,  as  by  telling  the  name  of  the 
person  from  whom  he  received  it,  and  who  is  known 

superfluous  to  show  how  difficult  it  must  be,  nay,  how  impos- 
sible, often,  to  prove  a  crime  by  two  witnesses.  The  absurd- 
itv  and  inconveniency  of  the  rule  has  been  attended  with  that 
effect  which  will  always  attend  an  inconvenient  law  ;  a  variety 
of  shifts  have  been  invented  to  evade  it.  One  witness  is  held 
sufficient  to  a  fact  of  a  general  nature,  and  half  proofs  have 
been  established. 

If  the  rules  of  evidence  are  founded  on  the  principles  of 
human  nature;  if,  like  other  rules,  their  fitness  is  to  be  judgea 
of  by  their  practical  utility,  it  must  be  admitted  that  a  proof 
by  one  witness,  or  by  circumstances,  in  certain  cases,  is  good 
and  reasonable. 

It  is  true,  that  by  the  English  law  of  high  treason,  that  is, 
by  the  25th  of  Edward  the  Third,  two  witnesses  are   required 
to  convict  a  prisoner  of  the  charge:  that  is  to  say,  one  witness 
to  one  fact,  and  another  to  a  different  fact,  of  the  same    ipei 
of  trea  hall  be  held  to  be  two  witnesses  within  the  mean- 

ing oi   the  statute.     But  this  law  was  passed  for   the  sei  urity 

the  subjei  1,  and  to  guard  against  the  overbearing  influence 
of  the  <aow n  in  state  prosecutions ;  and  it  is  no  doubt  in  refer- 
ence to  crimes  against  the  stale,  that  Montesquieu  has  made 
the  following  observation: — "Those  laws  which  condemn  a 
man  to  death,  on  the  deposition  of  a    single    witness,  are    latal 

liberty.  In  right  reason  there  should  he  two;  because  a 
wit'  .  iio  affirms,  and   the   accu  ed    who  denies,  make  an 

equal  balance,  and  a  third  musl  incline  the  scale." — Besii 
the  observation  is  made  by  a  writei  peaking  in  reference  no 
doubt  to  the  civil  law,  where  there  is  no  jurj  to  1  timate  the 
weight  dm-  to  I  evi  len<  e.  In  the  pre!  eni  I  iy,  it  is  not 
meant  to  inquire,  whal  crimes  should  be  liable  to  the  punish- 
ment ol  death,  and  whatnot;  it  is  only  proposed  to  inquire, 
whal  d  I   ;  loot  is  suffii  ient  to  satisfy   the    mi  id  ol  the 

.  ommi    ion  ol  a<  t.      rhe  pi  in<  iple  in   law    is  cl  M    the 

guill    1  i   neithi  r  in  I   not   diminished   l>\  thi  01 

When,  it  will  bi            1.  shall  a  prool  be    laid   I           iplete  ' 

The  an    .•  1  tmi  1      ■  .—  when  tin                 ■"                  •  ''  ,l"" 

pro  .      .1  vvhai  i  •  implied  by  thi 

The  juri  |uaini  u  ■.  thai  to  prove  i  the 
judge. 

Probare  est  fidem  facere  judii  i,  And  1  1  the  meaning 
24 


INSTRUMENTS     OF    EVIDENCE. 

to  be  a  real  peison,  it  is  incumbent  on  the  prosecutor 
to  show  thai  that  account  is  false  ;  but  if  the  account 
given  by  the  prisoner  be  unreasonable  or  improbable 

gned  i"  the  term  l>v  the  English  language.  The  common 
saying,  .:.■  used  in  argument,  where  a  fact  is  disputed — I  will 
Drove  iliis  to  von, —  1  will  convince  you  of  this, — I  will  satisfy 
you  on  this  head,— sufficiently  show,  that  to  prove,  only  im- 
plies, to  convince  another  of  the  truth  of  our  assertions. 

The  proof  must  be  held  to  be  complete,  on  the  part  of  the 
prosecutor,    when   he   produces  the   best   evidence   which  the 

e  will  afford,  and  such  as  shall  induce  the  judges  to  believe 
the  commission  of  the  fact,  until  it  is  refuted  by  opposite  evi- 
dence on  the  part  of  the  defendant:  one  story  is  good,  until 
another  is  told.  Where  the  evidence  is  believed,  and  is 
sufficient  to  account  for  the  fact,  no  other  proof  is  necessarv. 

Hypothetical  reasonings  are  susceptible  of  the  highest 
degree  of  evidence,  when  the  hypothesis  explains  many 
phenomena,  and  contradicts  none;  and,  when  every  other 
hypothesis  is  inconsistent  with  some  of  the  phenomena.  And 
this  is  the  principle  on  which  the  philosophy  of  Sir  Isaac 
Newton,  as  to  the  motion  of  the   heavenly  bodies,   is  founded. 

Where  there  is  no  reason  not  to  believe,  that  alone  is  a 
reason  tor  believing  the  evidence  of  our  senses. 

The  senses  are  ever  true,  but  the  understanding  often 
reasons  ill.  It  is  not  proper  to  reject  a  probable  opinion, 
without  establishing  a  better  in  the  room  of  it. 

But  these  remarks  are,  after  all,  but  barren  generalities; 
and  the  observation  of  the  great  writers  on  this  subject,  will 
to.)   often  he  found  to  be  just, — that  all  proof  is  arbitrary,  and 

tnot  be  reduced  to  positive  rules.  It  happens,  sometimes, 
that  tin-  m  i  I  probable  things  are  false;  for  if  they  were 
always  se]  from  falsehood,  they  would  be  certain,  and 

U'.t  probable.      <  >r,  as  rendered  by  some  other  translators, — 

'I  he  most  probable  things,  sometimes  prove  false;  because, 
if  they  wi  empt  from  falsity,  they  would  not  be  probable, 

but  certain. 

It  is  likely  several  tilings  may  happen,  which  are  not 
likely. 

The   ancient  Romans   were  so   sensible  of  the   uncertainty 

of  ■     ;  e,   nui  the  difficulty  of  always  ascertaining  the  guilt 

f  the  prisoner,  that  their  form  of  judgment  (or  verdict  of  the 

jiiryas  we  should  style  it),  merely  expressed,  that  he  appeared 

t  >  have  done  it,  fecisse  videtur. 

It  is  not  the  fact,  always,  that  constitutes  the  guilt,  but  the 


REAL     EVIDENCE.  371 

on  the  face  of  it,  the  onus  of  proving  its  truth  lies  on 
him.  Suppose,  for  instance,  a  person  were  to  charge 
me  with  stealing   this  watch,  and    I  were    to    say    1 

opinion  of  the  judge.  "  What  have  the  laws  ordered  in  such 
a  case?"  was  asked  of  an  advocate  of  Byzantium  :  "What  I 
please,"  was  the  answer. 

The  end  of  a  proof,  is  to  establish  the  matter  in  debate. 
In  every  case,  whether  by  direct  proof,  or  by  that  of  circum- 
stantial evidence,  the  jury  ought  always  to  be  fully  satisfied 
of  the  guilt  of  the  prisoner,  before  they  return  such  a  verdict. 
It  is  immaterial  what  the  proof  is,  if  it  is  not  believed,  and 
brings  conviction  to  the  mind  of  the  jury. 

It  has  been,  of  late  years,  a  favorite  theme,  to  descant  upon 
the  certainty  of  circumstantial  evidence.  The  practice  of  the 
law,  like  oilier  things,  has  its  prejudices;  and  the  name  of  an 
eminent  man,  the  success  of  a  particular  trial,  will  sometimes 
give  sanction  to  a  false  theory. 

Circumstances,  it  is  said,  cannot  lie.  This  is  very  true; 
but  witnesses  ran.  And  from  whom  do  you  obtain  circum- 
stances, but  from  witnesses?  Thus,  you  are  liable  to  two 
deceptions:  first,  in  the  tale  told  by  the  witm-ss;  and, 
secondly,  in  your  own  application  oi  those  circumstances. 
Where  a  fad  is  positively  sworn  in.  as  seen  by  the  witne 
the  conclusion  or  inference  to  be  drawn  from  it,  is  generally 
obvious.  Hut,  where  the  inference  is  to  be  drawn  from  a 
Long  train  ol  circumstances,  ii  is  a  matter  of  judgment ;  it  is 
an  exercise  "I  the  understanding;  and,  ;i  -  :iil  men  do  not 
understand  alike,  very  opposite  conclusions  are  sometimes 
drawn  fr<  im  the  ■  1   probabi  lit  v. 

When  the  am  ienl  prudence  oi  1  In-  law  denied  to  a  prisoner 
tli'-  benefit  o1  i  oun  el,  on  :i  1  apital  1  harge,  to  plead  lor  him.  u 
was  understood  thai  1  In-  prool  hould  be  so  <  leai  :i  to  !"■  >elf- 
evidenl  to  the  jury.     It  was  undei   to  "I  thai  tin-  judi  »uld 

be  >  oun  el  for  the  prisoner;  1h.1t  is  to  say,  thai   In-    hould 
thai    tin-    process   was    fail    and    regular,  a nd   thai    n<  1  undue 
advanl  vere  taken ;  but  that  proo        ;  vitiated  in  its  vital 

p. 11 1.  v.  •:    ]  :i  t;i Ise  principle  is  im roduced. 

"  .\     .  implion,    whil  h     ii'-'  e  ■  ;n  ilv    a  i     .  n<  inn 

of  11  more  a  >nvin<  i  ng  and  m<  ire  i  'i :  factory 
ih. m  .in-  other  kind  o1  evidence;  it  is  nol  within  the  reach 
and  '  ompa     "I  human  abilii  m  enl   a   train  ol   cir<  um 

stances  which  shall  be  so  connected  togetli  1  amounl   to 

a   proof-!  guilt,  without    affording  opportunitie       I    contra 
dieting   ;i  part,      not   all,  ol    these  circumstam 


INSTRUMENTS    OF    EVIDENCE. 

1  ught  it  from  a  particular  tradesman,  whom  I  name 
that  is,  prima  facie,  a  reasonable  account,  and  I  ought 
not  to  be  convicted  of  felony  unless  it  is  shown  that 
(Charge  of  Mr.  Justice  Bullen,  on  the  trial  of  Captain 
Donnellan.) 

1  deny  the  position.  I  maintain  that  the  theory  is  repug- 
nant to  the  received  principles  of  jurisprudence,  as  known  to 
the  best  foreign  writers  on  the  law  of  evidence.  I  maintain 
that  it  is  not  warranted  by  experience, — the  greatest  proof  of 

ry  rule,  the  proof  of  proofs.  And  I  may  further  assert  that 
it  is  new  to  the  practice  of  the  English  law. 

First,  1  shall  show  that  tjie  theory  is  repugnant  to  the 
i  eived  principles  of  jurisprudence,  as  known  to  the  best 
foreign  writers  on  the  law  of  evidence. 

'J  he  first  to  whom  shall  1  refer  is  Mascardus,  a  writer  of 
great  eminence  on  the  general  theory  of  proof;  regarding 
which,  he  has  published  four  volumes. 

'•  Proof  by  evidence  of  the  thing  is  superior  to  every  other; 
and  of  all  different  kinds,  none  is  so  great  as  that  which  is 
made  by  witnesses  deposing  to  what  they  have  seen." 

*•  Proof  b)  presumption  and  conjectures,"  he  observes  in 
anoth  'cannot  be  called  a  true  and  proper  proof." 

•  work  of  Menochius  is  entirely  dedicated  to  the  doc- 
trine of  presumptions  or  circumstantial  evidence  ;  and 
although  he  displays  the  partiality  for  this  species  of  proof, 
whi  h  is  natural  to  one  who  has  dedicated  his  attention  to  a 
particular  subject,  yet,  in  the  very  first  chapter  of  his  work, 
he  <>li  erves  that  "the  proof  or  credence  which  arises  from  the 
testimony  of  witnesses  is  superior  to  any  other." 

I  shall  not  think  it  necessary  to  load  this  Essay  with  quot- 
ations from  other  writers  on  the  civil  law;  the  above  two 
pos  ■■•  the  most  eminent  authority  of  any  on  the  subject  of 
evi  But  i  lie  same  opinion  is  expressed  by  every  other 

author   whom    I   have   had   occasion    to   consult;    no   one   has 

intained  the  absurd  position  that  circumstances  cannot  lie, 
or  th  Ll  tural  proof  is  superior  to  that  of  ocular  demon- 

stration. 

idly.    I  maintain  that  it  is  not  warranted  by  experience 
— the  great  test  of  every  rule.  * 

It  might  appear  invidious  to  carry  reference  to  cases  of 
mo  urrence,  where  fatal  mistakes  have  been  discovered 

of  persons  too  hastily  convicted  on  mere  circumstantial  evi- 
dence ;  the  history  of  the  judicial  proceedings  i;i  this  and 
every  other  country  will  afford  too  many  illustrations. 


RE  A  L     E I  'IDENCE.  3  7  3 

that  account  is   a    false  one."     This  doctrine  is  con 
firmed  by  the  cases  of  R.  v  Smith  (6)  and  R.  v.  Har- 
mer.  (c)     The  subsequent  case  R.  v.  Wilson  (d)  may 

(6)  2  Car.  &  K.  207. 

Some  cases  of  this  kind  will  be  found  well  illustrated  in 
Lord  Chief  Justice  Hale's  Pleas  of  the  Crown,  vol.  2,  p.  289. 

Various  instances  occur,  of  the  fatal  error  being  too  hue 
discovered;  but  who  can  say  how  many  instances  have  occur- 
red where  the  mistake  has  never  been  discovered? 

It  has  often  happened  that  the  real  murderer  has  confessed 
the  fact  for  which  the  innocent  man  has  suffered;  but,  as  real 
murderers  do  not  always  confess  when  innocent  men  suffer, 
it  is  impossible  to  say  to  what  length  this  dangerous  doctrine 
may  have  been  curried. 

Thirdly.  I  have  further  to  observe,  that  this  principle  is 
new  to  the  practice  of  the  English  law. 

That  great  collection  of  criminal  cases,  which  bears  the 
name  of  the  State  Trials,  contains  a  great  fund  of  criminal 
knowledge. 

1  he  opinions  of  the  judges,  however,  as  expressed  in  stale 
prosecutions,  are  not  always  to  be  regarded  as  law,  until  we 
reach  the  period  of  the  revolution. 

New  enactments  of  the  legislature  have  changed  some  part 
of  the  law,  and  the  improving  experience  of  time  lias  altered 
others.  The  first  notice  to  be  found  of  this  principle,  in  sound 
and  wholesome  times,  is  on  the  trial  of  Miss  Blandy,  for 
poisoning  her  father, — before  Mr.  Baron  Legge,  in   1, 

The  judge,  in   summing  up  the  evidence  to  the  jury,  de- 
clares thai  1  ircumstances  are  more  convincing  and  >atisfai  tory 
than  any  other  kind  ol    evidence;  because  "facts,"  he 
"  ■  annot  lie." 

That  facts  cannot  lie,  is  iound  logic,  no  doubl  Men  only 
lie.  Bul  as  we  only  know  fa<  i  i  through  the  medium  ol  wit- 
nesses, the  truth  oi  the  facl  depends  always  upon  the  truth 
of  the  witness;  so  that,  although  he  furnishes  us  with  i 
thou  and    fat  ts,  it    is   ol    no  con  •  queni  e,    if    he   him 

1111    oiiiid. 

The  next  occasion  on  which  this  doctrine  app<  on  the 

lebrated    trial   ol    Captain    Donnellan,   in    1781,  before   Mr. 
I  tit  1 «  e    Buller,  in   the   pa  I      I  hil 

altered  th.  :  ion  a  little,  by  shifting  the  ci  it<  1  ion  from  1 

to  circumstances     Facts,  be   » re,  were  the  •-i.ind.ioi   of  truth; 
circumstar ces  are    now   made  to    I        •      F01    circum 


374  INSTRUMENTS    OF    EVIDENCE. 

at   first  sight  seem   at  variance  with  it,  but   is  not  in 
for  although  in  that  case  R.  v.  Crovvhurst  and 

R.  v.   Smith   were    cited,  the    decision  of    the    court 

(<-)  2  Cox,  Cr.  Cas.  487.  (</)  1  Dearsl.  &  15.  157  ;  7  Cox,  Cr. 

Cas.  310. 

cannot  lie.  Hut  what  else  arc  circumstances  but  facts,  or 
minor  lads;  and  I  must  take  the  liberty  to  say,  that  circUM- 
stances  are  still  more  liable  to  deceive,  or  to  lead  to  deception, 
than   even    tarts.      A    fact    being   more    an   object   of    sight,   is 

er  apprehended  by  the  senses  than  a  circumstance,  which, 
from  its  triviality,  often  escapes  the  attention  altogether,  is 
mi   apprehended,  or  assigned  to  a  wrong  cause. 

I  Ik-  trial  in  question  will  afford  a  most  unparalleled  illus- 
tration of  the  truth  of  this  observation;  it  will  show  the  falli- 
bility of  circumstances,  and  the  very  opposite  conclusions 
which  different  men  will  draw  from  the  same  appearances. 

1  shall  here  give  the  general  shape  of  the  case  : 

If  shape  it  might  be  called,  which  shape  had  none, 
Or  sub.staiice  might  be  called,  which  shadow  seemed. 

Sir  Theodosius  Houghton,  a  young  man  of  a  delicate  con- 
stitution, had  sent  to  a  country  apothecary  shop  for  a 
draught  of  medicine.  Different  vials  appear  to  have  been  in 
his  chamber  at  the  time  he  took  the  draught;  which  was 
intended  to  be  a  composition  of  rhubarb,  jalap,  and  lavender 
water. 

lie  was  suddenly  seized  with  convulsions   in    his  stomach, 

and  foaming  at  the  mouth;  and  expired  before  he  could  give 

any  explanation.     On   rinsing  one  of  the  vials,  the  sediment 

he  effluvia  of  laurel  water,  which  is  known  to  be  a  strong 

i  oi  -•  ii     (  lonvulsions,  foaming  at  the  mouth,  and  sudden  death 

the  nal  ural  effects  of  that  liquid. 

Hit     every    man    who    dies    in   that    way   is  not,  therefore, 

poisoned.      The  apoplexy  will    produce  the  same    effects  and 

.   of  which  disease  the   father  of  the   young   man 

was  known  to  have  died.     \o  evidence  whatever  was  produced 

xistence  of  the  laurel  water. 

I  i.  Donnellan,  the  brother-in-law  of  Sir  Theodosius, 

was  living  in  his  house  at  the  time  of  the  accident.  He  was 
the  next  heir  to  the  e-iate,  and,  accordingly,  the  person  who 
had  the  most  immediate  interest  in  his  death.  He  certainly 
bev  :••  uneasiness  on  the  event,  and   appearances  indi- 

that  he  was  afraid  of  being  suspected  as  the  author  of 
the   mischief.      But,  it    if  was   natural    that   h?  should   be   sus- 


RE j  IL    El  rIDENCE.  3  7  5 

turned  simply  on  the  question,  whether  the  whole 
evidence  taken  together  was  sufficient  to  justify  a 
conviction. 

pected,  if  the  cui  bono  points  out  the  actor  of  a  nefarious 
deed,  it  was  not  unnatural  that  he  should  find  himself  placed 
in  circumstances  of  peculiar  delicacy,  and  manifest  embarrass- 
ment and  confusion  in  his  conduct. 

Captain  Donnellan  was  brought  to  trial,  on  a  charge  of 
poisoning  Sir  Theodosius  Boughton. 

The  leading  point  in  eveiy  case  of  this  sort,  is — did  the 
deceased  die  of  poison?  For,  if  he  did  not,  there  is  an  end 
of  the  whole.  Where  there  was  no  poison,  there  was  no 
poisoner. 

lint  this  was  altogether  a  question  to  be  decided  by  the 
opinion  of  medical  men.  From  what  then  did  they  form  their 
opinion?  from  any  of  those  broad  marks,  respecting  which 
all  men  judge  alike.  No;  there  was  nothing  o1  the  kind  to 
guide  their  judgment.  The  whole  cause  turned  on  circura- 
stam  es,  from  first  to  last.  Presumptions  wen-  formed  on  con- 
jectures; and  conjectures  supposed  from  circumstances  never 
proved.  Four  physicians  inspected  the  body,  on  dissection, 
the-  eleventh  day  after  the  death.  They  gave  their  opinion  to 
the  jury,  and  described  the  circumstances  on  which  that 
opinion  was  founded;  those  four  said,  they  believed  him  to 
have  died  ot    poison. 

The  circumstances  on  which  they  had  given  their  opinion 
were  tated,  ai  the  trial,  to  Doctor  John  Hunter,  the  most 
emineni  physician  of  the  age.  lie  declared  he  could  not  dis- 
cover, in  any  ot  those  <  ircumstances,  nor  in  all  o!  1  In 'in  united, 
any  sign  ol  the  deceased  having  died  from  poison,  nor  any 
symptoi  .  ond  those  in<  idenl  to  a  man  dying  suddenly. 

Q.  from  the  courl  to  Mr.  Hunter.  Then,  in  your  judg- 
ment, upon  the  appearance  the  gentlemen  have  des<  ribed,  no 
inference   can    he   drawn    from    thence    thai    Sir    rheodosius 

1;  ion     died     of    poison?      A     (   eii. link     OOl  :     it    dors    not 

give  t In  uspicion. 

In  questions  ol  science,  and  above  all,  in  those  ol  medical 
ii.  e,  i,:.-  faith  io   Ik;  repo  ed   in  an)  opinion  will   he  r<  | 
lated  by  the  prof*    >ional  eminence  of  the  pel   on  giving  il    One 

man'  n  being  generally  ••    j d  n    thai  "i  another,  .i    to  a 

mere  matter  <■.   fia<  t;  as  whether  he     ,  •. ,  .,1   did  nol  h  a 

thing,  the  learned  and  Hx-  ignoranl   are  upon  a  par,  and  one 

wit  n<       to  1  fai  1   is  'pi  1  a    • >i    1     anothei      I  lul  the  <  a  te  if 

veiy  differenl  as  to  a  mattei   0  ;  foi   one  man's  judg« 


3/6  INSTRUMENTS    OF    EVIDENCE. 

ment  will  outweigh  that  <>t"  many.  Upon  a  point  of  law  01 
equity  we  would  not  put  the  opinion  of  a  country  attorney, 
or  of  lour  country  attorneys,  against  thai  of  a  chief  justice. 
Doctor    fohn    Hunter  stood,  at  that  time,  at  the  very  head  of 

his    )h  ii  ;   his  opinion   gave  the   law  to  that  profession. 

both  in  England  and  in  every  country  in  Europe.  Had  the 
profession  been  to  estimate  his  opinion,  and  not  the  jury,  a 
very  different  verdict  would  have  been  given.  The  case 
referred  peculiarly  to  Dr.  Hunter's  line  of  study, — that  of 
dissection,  and  the  appearances  incident  to  a  body  on  sudden 
and  convulsive  death.  He  pronounced,  that  the  dissectioij 
had  been  irregularly  made,  and  in  a  way  not  to  afford  the  true 
criterion  to  judge  by.  And,  where  the  process  is  irregular, 
when  the  experiment  is  defective,  the  conclusion  must  always 
be  vague  and  doubtful. 

The  gentlemen  compocing  the  jury  did  not  perhaps  know 
the  eminence  of  Mr.  Hunter's  character ;  nor,  consequently, 
the  weight  due  to  his  opinion.  But  the  judge,  on  the  bench, 
no  doubt  knew  this;  and  in  balancing  the  evidence,  and  in 
summing  up,  it  was  clearly  his  duty  to  have  stated  the  great 
weight  to  be  attached  to  Mr.  Hunter's  observations.  He- 
stated  nothing  of  all  this;  but  took  them  numerically,  "four 
medical  men  to  one." 

Thus,  from  an  irregular  dissection,  a  positive  conclusion 
was  admit! 

It  is  a  rule  of  law,  and  above  all  in  cases  of  life  and  death, 
that  the  want  of  any  one  circumstance  will  prevent  the  effect 
ot  the  whole.  Thus,  if  the  dissection  were  irregular,  the 
opinion  formed  in  reference  to  that  dissection  was  a  mere 
nothing.  As  well  may  you  suppose  that  proposition  itself  to  be 
true,  which  you  wish  to  prove,  as  that  other,  whereby  you  hope 
to  prove  it. 

Po  propter  hoc — a  species  of  argument  which 

often  leads  to  falla<  v. 

the   fact   immediately   followed;  therefore   it   was 
occ  i  by  that  which   it  followed.     He  died  immediately 

after  taking  the  medicine;  therefore,  he  was  killed  by  the 
medicine. 

The  present  question  is,  was  the  process  on  the  trial  accord- 
to  law?      Was  the  conclusion    arrived  at  by  regular  and 

al  forms?  The  grounds  on  which  the  legal  inference  is  to 
be  drawn,  must  always  of  themselves  be  clear  and  certain; 
there  is  no  presumption  upon  a  presumption  ;  there  is  no  in- 
ference from  a  fact  not  known. 

When  the  judgment  of  the  law  is  passed  in   reference  to  a 


REAL    EVIDENCE.  377 

certain  thing,  the  existence  of  that  thing  should  be  first  clearly 
made  to  appear. 

The  fact  of  poisoning  ought  to  have  been  established  be- 
yond a  shadow  of  doubt,  before  any  person  was  convicted  as 
the  poisoner. 

But  the  jury,  it  will  be  said,  were  satisfied  on  this  point . 
Had  the  evidence  been  duly  summed  up  by  the  judge;  had 
they  been  told,  as  they  ought  to  have  been,  that  in  experi- 
mental philosophy,  such  as  tracing  the  effects  of  a  particuhv 
poison,  in  tracing  the  causes,  so  many  and  so  complicated  that 
lead  to  death,  if  the  experiment    is  defective,  if  the   pro  is 

vitiated  in  one  instance,  the  result  is  also  vitiated  and  defect- 
ive. Every  practitioner  in  philosophy  is  sensible  and  aware 
of  this  truth  ;  and  wherever  he  finds  that  he  lias  erred  in  his 
experiment,  he  sets  the  case  aside,  as  affording  no  satisfactory 
result,  and  renews  his  process   in  another  subject. 

But,  unfortunately,  it  is  a  matter  of  pride,  in  some  men, 
to  be  always  certain  in  their  opinion,  and  to  appear  beyond  the 
influence  of  doubt.  Very  different  was  the  practice  of  that 
modest  and  eminent  man  who  gave  his  evidence  on  this  trial  : 
he  was  aecustomed  to  the  fallaciousness  of  appearances,— to 
the  danger  of  hasty  inferences  from  imperfect  proofs,  and 
refused  to  give  his  a  to  an   opinion,  without   facts  being 

first  produced  to  support  it.  "If.  knew,'"  said  Mr.  Hunter, 
"that  the  draught  was  poison,  I  should  say.  most  probably, 
that  tin-  symptoms  arose  from  that;  but  when  I  don't  know 
that  that  draught  was  poison,  when  1  consider  that  a  number 
ot  other  things  might  occa  i'>n  his  death,  I  cannot  answei 
positively  to  it." 

Duiing  t he  whole  course  of  this  celebrated  trial,  there  was 
not  a  single  fact  established  by  evidence,  except  the  death,  and 
convulsive  appearances  at  the  moment.  The.'-  appearan* 
Mr.  I  In nier  de<  lared,  offered  no  su  pii  ion  whatever  <>t  poison, 
and  were  generally  incident  to  sudden  death,  in  what  might 
be  1  a    ed  :  of  health;  not  only  there  was  no  Fai  t  proved, 

but  there  wa  not  one  ingle  1  in  um  tan<  e  proved.  «  >ne  1  ir- 
cum  stance  wa  upposed  from  another,  equally  suppositious, 
and  from  two  fictions  united  a  third  was  produced.  The 
i  he  laurel  water  wai  thu  made  out :  t  he  sediment 
found  in  the  vial,  from  which  the  unfortunate  young  man  had 
drunk,  wa      uppo  ed  to    mell  like  bitter  almond      I       a  ■  the 

smell  ol    laurel   water  was  not   then    known  to   Lady   Bougllton, 

she  could  not   trace  the   re  emblance   further;  bittei   al n 

were  supposed  1  ' 

It  is  here  to  be  ob  ncll  attai  h 


378  INSTRUMENTS    OF    EVIDENCE. 

was  momentary,  for  it  was  washed  out  almost  immediately, 
and  could  not  be  twice  experienced.  Hut  what  so  uncertain 
as  the  sense  of  smell  ?  Of  all  the  human  senses,  it  is  the 
most  uncertain,  the  mosl  variable,  and  fallacious.  It  is  often 
different  to  different  men.  and  different  in  the  same  person,  at 
one  hour,  from  what  it  is  at  the  next  ;  a  cold,  a  slight  indispo- 
sition,  the  state  of  the  stomach,  a  sudden  exposure  to  the  air, 
will  extenuate  or  destroy  this  impression. 

But  this  train  of  proof  was  altogether  at  variance  with 
principles.  In  law,  as  already  observed,  the  arguments  should 
be  drawn  from  one  reality  to  another;  but  here,  the  argument 
turned  upon  the  breath,  the  smell  of  a  woman,  distracted  at 
the  moment  with  the  loss  of  her  son,  and  ready  to  ascribe  that 
evil  to  the  first  thing  that  came  in  her  way. 

All  proof  must  begin  at  a  fixed  point.  The  law  never  ad- 
mits of  an  inference  from  an  inference.  Two  imperfect  things 
cannot  make  one  perfect.  That  which  is  weak  may  be  made 
stronger;  but  that  which  has  no  substance  cannot  be  corrob- 
orated. The  question  is  never  what  a  thing  is  like;  but  the 
Witness  must  swear  to  his  belief  as  to  what  it  is.  A  simile  is 
no  argument.     Upon  the  principle  that  comparison  of  hands 

no  evidence,  in  a  criminal  trial,  comparison  of  smells  must 
be  held  to  be  equally  defective  Besides,  there  are  a  variety  of 
articles  that  resemble  bitter  almonds  in  the  smell,  and  many 
of  these  altogether  innoxious. 

In  circumstantial  evidence,  the  circumstance  and  the  pre- 
sumption are  too  often  confounded;  as  they  seem  to  have  been 
throughout  this  trial.  The  circumstance  is  always  a  fact;  the 
presumption  is  the  inference  drawn  from  that  fact.  It  is  hence 
called  presumptive  proof,  because  it  proceeds  merely  on  pre- 
sumption or  opinion.  But  the  circumstance  itself  is  never  to 
be  |  ted,  but  must  be  substantially  proved.    An  argument 

ought  to  '  onsist  in  something  that  is  itself  admitted;   for  who 
can  prove  one  doubtful  thing  by  another  ?    If  it  was  not  laurel 
water  that    Sir   Theodosius  drank,  the   proof    fails  as  to   the 
:  and,  certainly,  some  of  the  usual  proofs,  some  of  the 

mmon  indicia  or  marks  of  things,  should  have  been  estab- 
lished. Where  did  the  prisoner  procure  it?  From  whom  did 
he  obtain  it?  Where,  and  what  time, — and  by  whom,  or  how 
did  he  administer  it !     Nothing  of  this  kind  was  proved. 

whole  proof,  as  to  laurel  water,  rested  upon   the  com- 
parison    of   the  smell.      Question   to   Doctor   Parsons,  "Von 

tund  your  opinion  upon  the  description  of  its  smell  by  Lady 
Boughton?  "  Answer.  "Yes,  we  can  ground  our  opinion  upon 
nothing  else  but  that,  and  the  subsequent  effects." 


REAL    EVIDENCE. 

But  the  judgment  of  the  cause  from  its  effects,  Mr.  Huntei 
has  already  shown  to  be  equally  conjectural  as  that  formed 
from  its  resemblance  in  smell. 

The  proof  proceeds.     He   was   supposed  to   be   poisoned, 

because  it  was  believed  to  be  laurel  water;  and  it  was  believed 
to  be  laurel  water,  because  he  was  supposed  to  be  poisoned. 
We  will  not  say  that  both  these  suppositions  might  nor  have 
been  true;  yet  still  they  were  but  conjectures,  unsupported  by 
any  proof,  and  formed  against  all  the  rules  of  law. 

But  the  accused,  it  is  said,  furnished  the  proof  against  him- 
self, by  his  own  distrust  of  Ids  innocence.  lie  no  doubt 
betrayed  great  apprehensions  of  being  charged  with  the 
murder;   but  are  innocent  men  never  afraid  of  bein^  thought 

'  DO 

guilty  ? 

We  readily  recognize  all  tin-  general  truisms  and  common- 
place observations  as  to  the  confidence  of  innocence  and  the 
consciousness  of  guilt;  but.  we  find,  from  history,  that  inno- 
cence  loses  its  confidence  when  oppressed  with  prejudice;  and 
that  men  have  been  convicted  of  crimes  which  they  never 
committed,  from  the  very  means  which  they  have  taken  to 
clear  themselves. 

"  An  uncle  who  had  the  bringing  up  of  his  niece,  to  whom 
he  was  heir-at-law,  correcting  her  for  some  offense,  she  was 
heard  to  say,  'Good  uncle,  do  not  kill  me;'  after  which  time 
she  could  not  be  found;  whereupon  the  uncle  was  committed 
upon  suspicion  of  murder,  and  admonished,  by  the  justices  of 
the  -to  lind  out  the  child  by  the  next  assizes ;   against 

which  time- he  <  onld  not  find  her,  but   brought  another  child, 
as  like  her  in  years  and  pei  on  as  he  could  find,  and  apparelled 
her  like  the  imc  child  ;    but  on  examination  she  was  found  not 
to  be  the  true  child.     Upon   these  presumptions  (which   vvi 
■  red  t..  I..-  facts  that   appear   in   the  bn  i 

face  of  day),  he  wa  5  found  guilty  and  execute*  ith 

was,  the  1  hild,  being  beaten,  ran  away,  and  u 

inger;  and  a:  •  Is,  when  die  came  ol  age  to  h.r 

land,  1  id  demanded  it,  and  was  directlj  pi'  ved  to 

t rue  child. 

I  he  .,!,.,•.  referred  to  by  Lord    Man  Geld,  in  his 

spec-  h  in  tin-  1 1  .  a  ■  in  illustral  ion  thai  forgei  , 

hood  it  -eii,  ha  -  1-  imel  im<  l  to  defend  e\ 

an    inno(  enl  "  It    was  no  un<  ommon   thin  •."   he   ob« 

ervi   I,      for  a  man  to  defend  »>'  foul   m<  an  •  01 

1    iptain    Donnellan   was  liable  to 

pi<  ion,  on  the  general  relations  ol  the  subjei  t,  in  enl 


33o  INSTRUMENTS    OF    EVIDENCE. 

of  particular  circumstances,  and  would  have  been  suspected 
by  all  the  world,  had  he  been  never  so  innocent. 

[n  the  first  place,  it  was  a  well-known  fact,  that  he  had 
been  obliged  either  to  quit  the  army  (to  winch  he  originally 
belonged),  or  had  been  cashiered  by  the  sentence  of  a  court- 
martial. 

ondly,  he  was  of  all  other  men  the  person  who  was  to 
have  gained  by  the  death  of  Sir  Theodosius  Boughton ;  to 
whose  estate  and  property  lie  succeeded  as  his  brother-in-law. 
No  other  human  being  had  an  interest  in  the  case.  Such  is 
the  disposition  in  human  nature  (founded  perhaps  on  a  too 
just  knowledge  of  our  feelings  and  principles  of  action),  that 
first  suspicion  always  points  to  the  person  who  is  to  gain  by 
it,  as  the  author  of  any  mischief  of  which  the  real  perpetra- 
tor is  not  known.  The  cui  bono  was  not  invented  by  Cassius 
S  .cms,  to  whom  it  is  ascribed, — but  every  man  isalike  the 
rock  of  the  accused,  in  this  respect. 

If,  therefore,  it  was  natural,  on  general  grounds,  that  Mr. 
Donnellan  should  be  so  suspected,  it  was  also  natural  for  him 
to  be  sensible  that  he  would  be  so,  and  consequently,  to  be 
alarmed,  distracted,  and  uneasy.  I 

But   it   will    be  said,    that,  granting  all  this,   he   displayed 

more  uneasiness  than  was  even  natural  to  one  in  his  situation. 

It    is  a    delicate   thing   to   answer  this    question, — it  is   a  nice 

thing  to  fix  the  standard  of  human  feelings, — and  to  say  what 

jree  of  perturbation  a  man,  already  branded  with  guilt  and 

iviction,   shall  ted  when   placed  under  circumstances  which 

.;<•  him  to  be  suspected  of  a  capital  crime. 

I.aw\e:s,  and  those  accustomed  to  see  and  advise  with  per- 
sons in  that  unfortunate  predicament,  only  can  tell  the  terrible 
appiei  •    every    man   feels  at   the   idea   of   being  a 

I    time   brought   to  a  public  trial ;   it  is  altogether  a  new 
view  of  human  nature,  and  we  seldom  estimate,  rightly,  feel- 
ings which  v  :ver  experienced,  nor  expect  to  experi- 
ir  own  persons,  nor  have  witnessed  in  that  of  other 
persons  ; — 

"  To  thee  no  reason, — 
Who  c;<n/(l  lias  only  known,  and  evil  has  not  proved." 

They   who   have    been    accustomed   to   carry    on    criminal 

seditions,    must    be   fully   aware   of  the   influence  which  a 

former  trial  and   conviction  is   calculated  to  have  on   almost 

any  ation ;    but   in  no  case  can  that  influence  be  greater 

than  where  the  trial  turns  on  presumptive  proof.     For  here  il 


REAL    EVIDENCE.  381 

is  often  the  feelings,  the  prejudice?,  and  opinion  of  the  jury, 
that  supply  the  want  of  evidence. 

Suspicion  is  to  be  distinguished  from  proof, — a  thousand 
suspicions  do  not  form  one  proof.  We  understand,  in  com- 
mon language,  by  the  term  suspicion,  the  imagining  of  some- 
thing ill,  without  proof.  It  may,  therefore,  form  a  proper 
ground  of  accusation,  but  never  of  conviction:  it  seems  to 
arise  from  the  general  semblance  of  things,  and  often  from 
the  morals  of  the  individual,  rather  than  from  any  distinct 
act.  Thus  in  the  civil  law,  a  guardian  is  regarded  as  suspect- 
ed, whose  morals  render  him  so. 

A  suspicion  is  one  thing,  and  a  necessary  inference  an- 
other: a  suspicion  is  an  impression  on  another  man's  mind; — ■ 
an  inference  is  made  from  the  fact  itself. 

There  certainly  was  no  overt  act  proved  against  the  pris- 
oner during  the  whole  course  of  this  trial  ;  it  was  not  proved 
that  he  gave  the  poison  or  saw  it  given,  or  had  such  in  his 
possession.  Many  things,  no  doubt,  in  his  demeanor  and 
conversation,  gave  strong  suspicions  against  him;  hut,  if  the 
civil  law  positively  forbids  a  man  being  condemned  on  sus- 
picion, can  that  be  justified  by  ours? 

"The  wisdom  and  goodness  of  our  law  appears  in  nothing 
more  remarkably,  than  in  the  perspicuity,  certainty,  ami 
clearness  of  tin-  evidence  it  requires  to  fix  a  crime  upon  any 
man.  whereby  his  life,  his  liberty,  or  his  property  can  he  con- 
cerned: herein  we  glory  ami  pride  ourselves,  and  an-  justly 
the  envy  of  all  our  neighbor  nations.  Our  law,  in  such 
cases,  requires  evidence  so  clear  ami  convincing,  thai  every 
bystander,  the  instant   he  hears   it,  must    be  fully  satisfied  of 

the    truth    and    certainty    of    ii.       It     admits    of    n.)    '1111111 

innuendoe  ,  fori  ed  <  on  equi  1  harsh  1  'instructions,  noi 

anything  else  to  be  offered  a  ace,  but  what  is  real   and 

substantial,  according   to   the    rules   ol    natural    justice  and 
equity." 

We  have  been  the  more  full  in  oui  observations  on  this 
1  n  so  often  qui itcd  with  a  soi t  of  triumpl  . 

as  forming  a  model  and   illustration  of  the  nature  ol  <  in  um- 
stantial   evidence.     Ii    is  an    illustration,  indeed,  ol  how  lit! 
evidence  one  man  i.  n  convicted  on ;  bui  it  is  an  illustra- 

1  ion  ot  nothing  • 

We  can  never  bring  oui  elvi     i"  believe, thai   ii 

Sary  to    fol  feil    the    Ii|(-    ol    a  man    on    1 

sumptions  without   proof,  and   on  infci  upported  bj 

evidence. 

A  rule   of  conduct,  to  he  good,  must   be  so  on  ral 


fNS  TRUMEN  TS    OF    EVIDEM  E. 

mnds,  ami  in  reference  to  the  state  of  society  in  which  we 

placed;    and,   happily,  the   wholesome   state   of    British 

morals  does  not  require  that  men  should  be  convicted  on  any 

e\   dence  but  that  which    is  established   by  law,  and  warranted 

by  sound*  reason. 

'lh  mischief  of  a  nice  conviction  does  not  rest  with  the 
particular  case  :  precedents  are  grounds  of  law  by  the  English 
practice,  and  indeed  the  most  general  ground  of  our  law  of 
evidence. 

We  have,  in  more  than  one  instance,  witnessed  the  doc- 
trine of  circumstantial  evidence  being  hastily  applied  by 
loose  analogies  and  incidents,  foreign  to  the  intrinsic  condi- 
tions ot  the  subject.  But  we  do  not  feel  ourselves  at  liberty 
to  hurt  the  tenderness  due  to  living  reputation,  by  recurrence 
to  recent  instances;  we  adopt  the  more  agreeable  duty  of 
bearing  testimony  to  the  wise  maxim  of  an  eminent  magis- 
trate: "Nothing  can  be  more  dangerous  or  unjust,  in  mat- 
ters of  this  nature,"  says  Mr.  Chief  Justice  Hyde,  speaking 
of  homicide,  "than  to  establish  material  distinctions  upon 
points  which  do  not  enter  into  the  intrinsic  merits  of  the 
case."     East's  Pleas  of  the  Crown,  p.  241. 

The  evidence  of  circumstances  on  every  criminal  trial, 
should  be  confined  as  much  as  possible  to  the  actual  commis- 
sion of  the  fact. 

The  intention,  indeed,  must  always  precede  the  act,  and  is 
chiefly  to  be  judged  of  by  the  antecedent  circumstances.  But 
then  each  of  these  circumstances  should  be  regarded  as  a  fact 
to  be  proved  and  established  by  evidence ,  and,  unless  so  es- 
tablished, ought  never  to  form  a  ground  of  conviction.  We 
musl  oni  e  more  revert  to  the  trial  for  illustration.  On  pass- 
ing sentence,  Mr.  justice  Puller  conveyed  the  following 
opinion  as  to  tin;  motives:  " Probably  the  greatness  of  Ins 
.  1  the  greatness  of  your  offense ;  ami  I  am  fnliy 
satisfied,  on  the  evidence  tdven  against  you,  that  avarice  was 
your  motive,  and  hypocrisy  served  you  with  the  means." 

Put  where  or  how  was  this  proved  by  evidence  on  the 
trial.1  The  speech  o1  a  judge  is  to  be  taken  out  o1  the  evi- 
dence adduced  on  the  trial;  if  it  is  not  so  limited,  it  maybe 
difficult  to  fix  its  bounds. 

In  a  criminal  trial,  and  more  especially  in  the  trial  lor  a 
capital  offense,  everything  is  supposed  to  be  governed  by  fixed 
and  known  rules.  There  is  here  no  room  for  the  discretion 
of  a  judge;  the  proof  by  which  a  prisoner  is  to  be  tried  in  as 
fixed  as  the  law  which  condemns  the  crime;  at  least,  the  prin- 
ciples of  that  proof  are  to  he  stated  by  the  judge  to  the  jury. 


REAL     EVIDENCE.  3S3 

as  known  and  received  maxims  of  reason,  handed  down  by  a 
long  train  of  precedents,  or  fixed  by  statutory  enactment. 
"  Whatever  the  rules  in  Westminster  Hall  are,  it  is  not  there- 
fore reason  because  it  is  a  rule;  but  because  it  is  reason,  and 
reason  approved  of  by  long  experience,  therefore  it  is  a  rule."' 
(State  Trials,  vol.  4,  p.  291.)  The  opinion  of  Mr.  Justice  Bul- 
ler  might  have  been  very  just,  but  if  it  was  not  regularly 
formed;  it  was  extra-judicial  and  of  dangerous  example. 

It  is  an  observation  warranted  bv  the  history  ol  oui  <  rim- 
inal  law,  that  all  the  instances  by  which  innocent  men  have 
lost  their  lives,  have  arisen  from  precedents  against  guilty 
men;  but  laws  were  meant  to  protect  the  innocent,  as  well  as 
to  punish  the  guilty. 

The  following  observation  bv  Lord  Bacon  suggests  the 
caution  with  which  men  should  give  their  assent  to  any  prop- 
osition founded  on  a  mere  similarity  of  circumstances:  "  1 
mind,"  he  observes,  " has  this  property, — that  it  readily  sup- 
poses a  greater  order  and  conformity  in  things  than  it  finds; 
and  although  many  things  in  nature  are  singular,  and  ex- 
tremely dissimilar,  yet  the  mind  is  still  imagining  parallel 
correspondence  and  relations  betwixt  them  which  have  no 
existent  e, 

"  Nor  does  this  folly,"  he  adds,  "  prevail  only  in  abstract 
tenets,  bin  also  in  simple  notions."     (Novum   organum, 
aphorism  .(5.) 

Every  our  may  prove  the  justice  of  these  remarks  by  his 
reflections  on  what  h<  ever]  day  occurring    in  common 

life. 

Weak  men  are  al way;  the  fit  t  to  assenl   and   to  admit   of 
loo  e  an  impel  fe<  1   resemblances,  and  infen  m  es  w  ith 

out  pro.. 1, — whilst  men  of  stronger  minds  and  i  refle<  tion 

look  out  for  di  tinctions;  they  search  for  discriminations  in 
sub  nearly  similar,  and  are  slow  in  yielding  theii  assenl 

t,,    IP  .t    impn     ions.       ludgmenl    1  on  i  ts   in   distinguish 
thing  i  ••'.  h  -  neai  ly  alike-,  without  exactl) 

In  the  general    prejudice  which  al  pre  enl   prevail  1  foi 
1  him  cue-   I  evident  e,  the  mind,  I  am  afraid,  is  rather  di 
to  look  .an  foi  analogies  and  re  emblam  e  .  than  foi  m- 

inat  ion. 

In  almosl  every  trial,  it    is  the  intere  I  ol    1!'  t< 

a<  -  mini!  c               1        wiul  t  the  safety  ol   th< 
si  1  ,  iii  -  .,n  idering  th<           parate  and  aparl  ;    1 
therefore,  ha    ndency  rathei  1 nvi<  t  than  to  a<  quit, 

We    hould  lament  to  a. Ivan,  e  anything  that  might  tend 
weaken  the  facility  of  detecting  crimes;  but  that  facility  1 


384  INSTRUMENTS    OF    EVIDENCE, 

be  in<  reased  by  establishing  certain  rules  for  the  determina- 
tion of  prooi 

Without  presuming  to  state  a  body  of  general  rules,  we 
in. iv  be  allowed  t"  show  where  some  obvious  principles  have 
been  violated.  All  instruction  proceeds  safest  by  negatives 
and  exclusives  to  what  is  positive  and  affirmative.  And  it  was 
this  principle  which  led  us  to  dwell  so  particularly  on  the' 
above  case.  We  conceive  one  great  error  has  arisen  from  the 
popular  saying  that  circumstances  cannot  lie;  from  the  idea 
that  circumstantial  evidence  is  equivalent  to  direct  proof. 

Ami.  perhaps,  from  the  vanity  of  forming  resemblances, 
where  (if  that  passion  in  the  judicial  character  is  ever  allow- 
able), the  vanity  should  rather  be  in  perceiving  distinc- 
tions. 

Nothing  is  more  dangerous  in  the  mouth  of  a  judge  than 
popular  brocards,  barren  generalities,  and  loose  unsettled 
maxims,  which  carry  away  the  attention  of  the  jury  from  the 
intrinsic  evidence  of  the  case  itself,  and  prevent  the  free  ex- 
ercise of  their  own  understandings.  It  is  not  every  juryman 
that  can  understand  a  general  theory,  but  every  man  of  sense 
can  compare  what  he  hears  at  the  trial,  with  similar  circum- 
stances, as  falling  under  his  own  experience,  and  so  estimate 
for  himself  the  credibility  of  the  evidence. 

I  deprecate  an  argumentative  judge,  reasoning  a  jury  into 
a  belie!  of  guilt  or  innocence,  rather  than  leaving  them  to 
judge  from  their  own  feelings;  from  those  feelings  which  God 
and  nature  have  bestowed  on  them,  as  the  safeguard  of  inno- 
cence, and  the  true  measure  of  human  conduct. 

The  following  observation,  in  the  charge  so  often  alluded 
to,  deserves  particular  remark: — "  It  is  not  within  the  reach 
and  compass  of  human  abilities  to  invent  a  train  of  circum- 
stances which  shall  be  so  connected  together  as  to  amount  to 
a  proof,  without  affording  opportunities  of  contradicting  a 
great  part,  if  not  all,  of  these  circumstances." 

This  is  one  of  those  general  sayings  which,  coming  from 
high  authority,  is  allowed  to  pass  without  examination,  and, 
from  being  often  repeated,  no  one  thinks  to  doubt  of  its  truth. 
other  remark,  however,  was  ever  more  refuted  by  experi- 
ence. If  the  observation  was  just,  we  should  find  it  illus- 
trated by  practice;  but  we  know  that  there  are  infinitely 
more  instances  of  mistaken  convictions  on  circumstantial  evi- 
dence, than  by  any  other  species  of  proof  whatever.  "Reduc- 
ing general  words  to  particular  facts,  clears  the  sophistry 
of  them." 

I  beg  here  to  dwell,  a  little  more  minutely,  on   the  hard- 


RE  A  L     E 1 1DEXCE.  385 

ship)  of  requiring  a  prisoner  to  controvert  a  train  of  circum- 
stantial evidence.  For,  how  can  a  prisoner,  altogether  inno- 
cent of  the  charge,  controvert  circumstances,  or  an  account  of 
events,  with  which  he  is  unacquainted.  A  man,  charged  with 
the  commission  of  a  crime,  at  a  period  long  anterior  to  the 
trial,  if  innocent,  and  at  a  distance  from  the  place  at  the  time 
of  its  occurrence,  can  only  establish  his  innocence  by  one  of 
two  methods: — first,  by  showing  a  contradiction  in  the  cir- 
cumstances of  the  proof  itself;  or,  secondly,  by  establishing 
an  alibi, — that  is,  by  showing  that  he  was  at  a  different  place 
at   the   time.     In    regard  to   the   first    mode   of   refuting  the 

CD  CD 

charge:  if  he  is  ignorant  of  the  facts,  it  he  is  unaccustomed 
to  the  nature  of  legal  argument,  he  may  not  easily  confute 
the  chain  of  circumstances.  A  premeditated  story  is  always 
so  made  up  as  to  bear  the  appearance  of  consistency.  Men 
will  believe  a  probable  falsehood  rather  than  a  singular  truth; 
and,  in  regard  to  the  proof  of  an  alibi,  if  the  prisoner  d< 
not  happen  to  recollect  the  day,  or  cannot,  perhaps,  recall  to 
mind  where  he  chanced  to  be  on  that  day,  he  is  left  without 
a  defense.  The  proof  of  a  negative  is  always  difficult,  often 
impossible. 

lint  what  is  the  situation  of  a  person  charged  with  a  capi- 
tal crime?  Suspicions  of  this  sort  generally  fall  upon  the 
needy  and  unfortunate.  lie  is  brought  from  a  jail,  where  he 
has  been  perhaps  long  confined,  distracted  and  agitated  with 
his  :,  itii.iii  m ;  he  has  none  to  assist  him  or  sugge  1  to  him 
what  course  to  pursue;  and  no  ( ..in  allowed  to  plead  for 

him,  and  assert  his  innocency  ol  the  facts  charged.  A  long 
train  ot  circumstances  are  offered  by  the  witnesses,  <>!  the 
whole  of  which  he  is  ignorant,  and.  therefore,  unprepared  !■> 
ask  the  necessary  questions,  or  to  point  out  to  the  jury  the 
incongruity  of  tin-  story  advanced;     his  very  attempt  i" 

fully  (thai  1 .  i"  say,  if  he  ma!.  ei  vations  on 

the  evidence,  which  are  not  explanatory  "i-  correct),  will  be 
held  an  ai     .      nt  of  his  guilt.     But  thi  have  been  sworn 

to,  and  hi  I  appeara is  perhaps  against  him;  and 

his   character  -it  may    be — uffering    undei   prejudice.     I' 
weak  magistrate  happens  to     it  on  the  bench  (and  weak  men 

imetimes   find  their  way  to  the  bench,  as  well   a 
pla<  e  1  ;  ii  the  judge  is  infirm,  or  In  ■  attention  1 
tin-    fatigue   o!    ;i  long   trial  ;  and    it.  in 
sighl  .,t  it,.-  <  I,., in  ot  in-  idenl 

before  it  is    o,     endea\  "i    i"  pi'  »y  othei  i<  •' 

are  not  proved  them selve  the  attention  wh 

to  the  charat  ter  of  the  wil  ■  and  h 

25 


386  INSTRUMENTS    OF    EVIDENCE. 

for  the  prosecution,   in  his  opening  speecli,  to  prejudice  an<3 
inflame  the  minds  of  the  jury  ! — 

It  were  superfluous  to  ask  what  the  result  of  such  a  irial 
must  naturally  be.  We  hope,  and  believe,  that  such  a  con- 
currence of  incidents,  hostile  to  justice,  is  very  uncommon. 

Bui  i"  return  to  the  proposition  in  the  charge;  can  it  ever 
be  admitted  that  the  number  of  circumstances  alleged  against 
a  prisoner,  facilitates  the  refutation?  Surely  the  difficulty  of 
defense  is  increased  by  the  multiplicity  of  proof  that  it  has 
to  contend  with!  The  attention  is  distracted  ;  and  the  very 
embarrassment  incident  to  the  occasion,  is  alone  sufficient  to 
bereave  any  common  man  of  his  faculties. 

The  civil  law  has  foreseen  the  embarrassments  which  a 
prisoner  must  always  be  under,  from  a  variety  of  witnesses 
being  produced  against  him  ;  and  has,  therefore,  left  it  to  the 
discretion  of  the  judge  to  moderate  their  number.  It  might 
as  well  be  said,  that  a  prisoner  has  an  advantage  in  the  mul- 
tiplicity of  witnesses  opposed  to  him,  because  if  false  he  can 
always  refute  some  of  them. 

But,  if  you  break  the  chain  of  circumstances,  it  will  be  said, 
in  one  link,  the  whole  structure  falls  to  the  ground.  This, 
no  doubt,  ought  to  be  the  consequence.  But  is  the  fact  so  ? 
Does  experience  warrant  the  observation?  Are  we  to  sup- 
pose that  all  those  who  have  been  irregularly  convicted,  made 
no  delense,  and  broke  no  part  of  the  chain?  They  must 
naturally  have  offered  something  to  the  consideration  of  the 
jury.  Vet  still,  Ave  see,  that  the  general  effect  of  the  whole, 
the  multiplicity  of  the  circumstances,  pointing  against  the 
prisoner,  has  been  thought  sufficient  to  warrant  conviction. 

It  happens,  not  unfrequently,  that  a  prisoner  is  not  ap- 
prised of  the  evidence  intended  to  be  produced  against  him. 
If  the  case  is  altogether  false  on  the  part  of  the  prosecution. 
the  difficulty  of  defense  is  increased.  For  a  man  can  only  re- 
fute a  false  story,  by  being  acquainted  with  some  part  of  it. 
The  true  case  must  always  be  opposed  to  the  false  one.  Thus, 
in  the  case  of  two  men  who  were  tried  some  few  years  ago, 
for  the  murder  of  Mr.  Steele,  on  Hounslow  Heath,  a  long  de- 
tail of  the  circumstances  attending  the  occasion  was  given  in 
evidence  against  them.  But  if  they  were  not,  as  they  asserted, 
present  on  the  occasion,  and  knew  nothing  of  either  Mr. 
Steele  or  the  murder,  how  was  it  possible  for  them  to  refute 
or  disprove  the  circumstances? 

The  accusation  was  not  brought  until  some  years  after  the 
murder.  They  could  not  bring  to  recollection  where  they 
were  on  that  day,  and  so  failed  in  establishing  an  alibi. 


RE  A  L     E I  'IDEXCE.  38; 

A  different  man   has  been  since  brought  to  trial    for  that 
very  murdftr.     It  is  true  that  the  judges  did  not  allow  the  evi- 

dence  to  be  entered  upon    because  they  thought  that  it  was  in- 
sufficient  on   the  statement  of   the   counsel   in   his   opening 
.speech. 

It  should  be  always  kept  in  mind,  that  circumstantial  evi- 
dence is  merely  supplemental;  and  is  only  resorted  to  fr< 
the  want  of  original  and  direct  proof.  And  it  never  can  be 
said  that  what  is  secondary  is  equal  to  that  which  is  original, 
— the  thing  substituted  equal  to  that  which  it  is  meant  to 
supply. 

And  this  distinction  seems  fully  recognized  by  Lord  Chief 
Baron  Gilbert.  "When  the  fact  itself  cannot  he  proved,  that 
which  comes  nearest  to  the  proof  of  the  fact,  is  the  pn 
the  circumstances  that  necessarily  and  usually  attend  such 
facts,  and  called  presumptions;  and  not  proof,  for  they  stand 
instead  of  the  proofs  of  the  tact  till  the  contrary  he  prov 
(Gilbert's  Law  of  Evidence,  vol.  i,  p.  142). 

A  regard  to  the  peace  and  good  order  rtainlv 

requires  that  crimes  shall  be  liable  to  be  proved  by  circum- 
stantial evidence.  But  a  regard  to  the  well-being  of  society 
likewise  demands  that  the  ol   |      of  should  be  regulated 

by  some  fixed  rules.      If  the  nature  of  the  thing  admits  ol  bill 

few  rules,  for  that  vei  reason  those  few  should  be  the  more 
distinctly  observed.      This   principle  ;s  excellently  illustrated 

by  the  deep  Graviha,  who  s lewhere  obs  (for  the  hook 

is  not  at  hand  for  referent  e)  thai   as  the  milil  try  slate  adm 
of   but   few    laws,  tho  hould    be  the   m< 

ob  1  hey   could  only   have  been   inti  d  into  an 

army  or  camp  from  a  strong   sense  ol  theirnece    lity. 

I  egal  pn  would  be  vague  and   uncertain,  judj 

would  I..  arbitrary,  and  innocence  would  bee  I   to 

th.  1  menl  of  w  il  nc        ,  il  general  and  fixed   1 : 

ere  not  1  >b  ei  \  ed  foi  1  he  1  ery  ol  t  ruth. 

Ol  thes<   the  follow  ii   •   ire  pei  haps  the  chief: 

1.  'i  he  a<  tual  comi  I         '  ime  itsell  (1  he  1  orpin 
deli-  i  i)   .hall  be  cleai  ly  established. 

2.  Each  <  in  urn  tance    hall  be  di  tincl  ly  pi  oved. 

3.  The  circum  e  relied  on  shall  be  su<  h  as  is  nei 
or  usually  in<  idenl  to  the  1  icl  1  h 

4.  When  the  numl  »end  on  the 
moii  v  of  on<-  wit  ii-    i,   that    numbei    1  hall    nol    ini 
strength  of  the  prool       I           ■  the  wh< 

vera*  ity  of  the  witne    .  when  thai  fails,  the  wh 

5 .•  Direct  evidence    hall    nol    be  held   1  from   being 


3SS  INSTRUMENTS    OF    EVIDENCE. 

opposed  to  circumstances  incongruous  with  that  evidence. 
I  ause  a  certain  degree  of  incongruity  is  incident  to  every 
man's  conduct. 

6.  The  judge,  in  summing  up,  shall  assume  no  fact  or  cir- 
cumstance as  proved;  but  shall  state  the  whole  hypothetical  ly 
and  conditionally;  leaving  it  entirely  to  the  jury  to  determine 
how  far  the  case  is  made  out  to  their  satisfaction. 

7.  The  difficulty  of  proving  the  negative  shall  in  all  cases 
he  allowed  due  weight.  But  the  silence  of  the  prisoner  as 
to  facts,  which,  if  innocent,  he  might  have  explained,  shall  be 
held  an  argument  against  him.  This,  of  course,  proceeds  up- 
on the  supposition  that  he  stood  fully  apprised,  before  his  trial, 
of  all  that  was  intended  to  be  produced. 

8.  The  counsel  for  the  prisoner  shall  be  allowed  to  object 
freely  to  the  production  of  any  evidence,  as  not  proper  to  go 
to  the  jury,  or  as  not  being  of  legal  credence.  On  Captain 
Donnellan's  trial,  the  counsel  do  not  appear  to  have  always 
availed  themselves  of  this  privilege. 

The  liberty  of  objecting  to  any  piece  of  evidence,  ought, 
on  every  occasion,  to  be  strenuously  exerted ;  as  supplying,  in 
a  great  measure,  the  right  of  making  the  defense. 

9.  The  jury  shall  be  as  fully  convinced  of  the  guilt  of  the 
prisoner,  from  the  combination  of  the  circumstances,  as  if 
direct  proof  had  been  brought. 

It  should  always  be  considered  whether  the  connection 
betwixt  the  circumstances  and  the  crime  is  necessary,  or  only 
casual  and  contingent;  and  whether,  therefore,  the  circum- 
stances necessarily  involve  the  guilt  of  the  prisoner,  or  only 
I  robably  so;  whether  these  circumstances  might  not  all  exist, 
and  yet  the  accused  be  innocent. 

It  seems  desirable  that  some  inchoate  act,  approaching  to 
the  crime,  should  be  proved  on  the  prisoner ;  and  that  he 
should  not  be  convicted  on  general  appearances, — such  as 
from  being  found  in  a  certain  situation.  The  improper  con- 
victions seem  chiefly  to  have  been  owing  to  a  neglect  of  this 
rule.  Strong  appearances,  but  without  any  act  proved  against 
the  prisoner,  have  too  often  turned  out  unfounded. 

It  is  sometimes  said,  in  summing  up  by  the  judge,  that  the 
evidence  is  the  best  that  the  nature  of  the  case  can  be  supposed 
to  afford  ;  but  this,  certainly,  is  no  reason  for  the  jury  being 
satisfied  with  it.  In  the  first  place,  the  nature  of  the  case  is 
only  to  be  known  by  the  evidence.  The  case  of  an  innocent 
man  must  always  be  of  a  nature  to  afford  very  little  evidence; 
but  the  jury,  let  the  case  be  what  it  will,  must  be  distinctly  per- 
suaded of  the  guilt  of  the  prisoner,  before  they  return  such  a 


REAL    EVIDENCE.  389 

verdict.  Agreeably  to  the  common  law,  where  the  facts  have 
goneregularly  before  a  jury,  and  there  is  no  misdirection  from 
the  judge  in  summing  up,  the  proof  is  complete.  When  the 
jury  is  satisfied,  the  law  is  satisfied.  No  principle  can  be  at 
once  more  calculated  to  facilitate  the  detection  of  crimes,  to 
ensure  the  safety  of  innocence,  and  to  maintain  the  general 
peace  of  society. 

10.  Where  the  body  of  the  act  is  distinctly  sworn  to,  a 
variation  in  the  circumstances  does  not  destroy  the  proof. 
"If  several  independent  witnesses,  of  fair  character,  should 
agree  in  all  the  parts  of  a  story  (in  testifying,  for  in stan  ■. 
that  a  murder  or  a  robbery  was  committed  at  a  particular  time, 
in  a  particular  place,  and  by  a  certain  individual),  every  court 
of  justice  in  the  world  would  admit  the  fait,  notwithstanding 
the  abstract  possibility  of  the  whole  being  false.  Again,  if 
several  honest  men  should  agree  in  saying  that  they  saw  the 
king  of  France  beheaded,  t  hough  they  should  disagree  as  to 
the  figure  of  the  guillotine,  or  the  size  of  his  exe<  utioner, 
to  the  king's  head  being  bound  or  loose,  ;is  to  Ids  being  com- 
posed  or  agitated  in  ascending  the  scaffold,  yet  every  1  ourt  of 
justice  in  the  world  would  think  that  such  different  e,  respei  t- 
ing  the  circumstances  of  the  fact,  did  not  invalidate  the  evi- 
dence respei  ting  the  tact  itself. 

"When  you  speak  of  the  whole  of  a  story,  you  cannot 
mean  every  particular  circumstam  e  connected  with  the  histoi  v, 
but  not  essential  to  it ;  you  musl  mean  the  pith  and  man 
of  a  story ;  tor  ii  would  be  impossible  to  establish  the  truth 
of  any  Fact  (of  Admirals  Byng  01-  Keppel,  for  example,  h.u  ing 
neglected  or  not  neglected  their  duty),  if  a  disagreement  in 
the  evidence  ol  witnesses,  in  minute  p'>ints,  should  be  1  onsid- 

da    annihilating  the  weight  of  the  evidence  in   points  "t 
importance      In  a  word,  the  relation  <>i   a   facl   d  essen- 

tially from  the  demonstration  ol  . 1  theorem  ;   d  one  Step  is       I 
out,  one  link  in  the  1  hain  ol  idee  1  onstituing  ;i  demonstration 
is  omitted,  the  conclusion  will  bedestroyed;   bul  .1  facl   n     . 
be  e  tabli  ihed  notvi  ithstanding  .1  di  agreemenl   ol    \\  il 
in   certain    trilling   particulars   ol    theii    evidence    respcel 
it." 

The  following  rule  is  the  converse  of  the  preceding  one: 
1       1 1.  Where  the  leading  fa<  I  01  1  rime  is  only  to  b<  I    l 

from  <  in  utn  ;tan<  e  1,  a  matei  ial  vai  iation  in  1 
the  effe<  '  oi  the  whole. 

For,  as  eat  h  parti<  ular  i  <  to  have  an  -  ffe<  1  on  tl 
com  In  ion,  1  Ltion  in  the  1  in  umstan<  es  ma) 

ent  color  to  the  u  hole  tran  1  u  tion. 


INSTRUMENTS    OF    EVIDENCE. 

A  system  of  propositions  is  onlj  true,  because  each  of  the 
ons  ■  i  which  it  is  composed  is  true. 
There  being  no  repugnance  in  the  chain  of  circum- 
stances, is  a  proof  that  a  thing  may  be,  not  that  it  is;  though 
there  being  a  repugnance,  is  a  proof  that  ii  cannot  be.  What- 
ever does  not  involve  a  contradiction,  is  possible;  whatever 
involves  one,  is  impossible. 

13.    The  absence  ol  the  proof,  naturally  to  be  expected,  is 

strong  argument  against  the  existence  of  any  fact  alleged. 
This  applies  particularly  to  case-  where  violence  is  charged. 

"  h  is  an  undoubted  truth"  (Lord  Mansfield  observed  in 
the  Douglass  cause),  "that  judges,  in  forming  their  opinion 
of  events,  and  in  deciding  upon  the  truth  orfalsehood  of  con- 
troverted  facts,  must  be  guided  by  the  rules  of  probability; 
and  as  mathematical  or  absolute  certainty  is  seldom  to  be  at- 
tained in  human  affairs,  reason  and  public  utility  require  that 
judges,  and  all  mankind,  in  forming  their  opinion  of  the  truth 
of  facts  should  be  regulated  by  the  superior  number  of  the 
probabilities  on  the  one  side  or  the  other,  whether  the  amount 
of  these  probabilities  be  expressed  in  words  and  arguments, 
or  bv  figures  and  numbers." 

Applied  to  the  affairs  of  civil  life  in  reference  to  which  the 
observation  was  made,  the  proposition  is  excellent ;  but  the 
rule  does  not  hold  in  criminal  cases  The  impression  on  the 
mind  of  the  jury,  in  a  criminal  case,  must  be,  not  that  the 
prisoner  is  probably  guilty,  but  that  he  really  and  absolutely 
is  so;    -where  they  doubt,  they  are  to  acquit. 

It  is  often  said,  in  respect  to  evidence  of  this  sort,  if  you 
break  the  chain  of  circumstances,  the  whole  falls  to  the 
ound.  It  is  material  always,  to  be  apprised  of  the  meaning 
of  terms,  before  we  argue  as  to  their  effect.  What  is  the 
import  of  the  term?  In  what  does  this  interruption  consist? 
The  Douglass  cause  turned  entirely  on  circumstantial  evi- 
dence; yet  neither  the  speeches  of  the  judges,  nor  the  singu- 
larly acute  letters  of  Mr.  Stewart,  on  the  subject  of  the  trial, 
afford  any  solution  of  the  term.  The  chain  appears,  on  both 
sides  of  the  question,  repeatedly  broken,  and  as  often  re- 
newed; the  want  of  the  fact  is  supplied  by  argument,  and  the 
argument  invalidated  by  the  wain  of  the  fact,  in  endless  pro- 
lixity. 

We  hazard  an  explanation  of  it  with  great  diffidence; — the 
chain  of  circumstances  is  broken,  when  there  is  such  a   de- 

t  in  the  thread  of  the  narrative  as  cannot  be  accounted  for, 
or  such  a  contradiction  in  the  statement  as  is  irreconcilable 
with  probability. 


REAL    EVIDENCE.  391 

We  will  not  add  to  the  number  of  the  above  rules,  lest  we 
might  appear  to  aim  at  forming  a  technical  system  for  the 
belief  or  disbelief  of  facts,  independent  of  the  free  exercise 
of  the  understanding  over  the  circumstances  of  the  case. 

"We  must  never  bind  ourselves  down  to  believe  or  disbe- 
lieve, on  general  grounds,  abstracted  from  the  condition  of 
times,  persons,  motives,  and  all  the  variety  of  relations  of 
which  the  particular  case  happens  to  consist.  Irregular,  ca- 
pricious, and  shifting  as  man  is  in  all  his  actions,  we  can  never 
establish  absolute  grounds  for  judging  of  these. — Phillips. 

And  see  as  to  presumptions  :  State  v.  Davidson,  30  Vt.  377  ; 
Smith  v.  Commonwealth,  21  Grat.  809;  State  v.  Keeler,  28 
Iowa,  553  ;  People  v.  Bennett,  49  X.  Y.  137  ;  Tyner  v.  State,  5 
Humphreys,  383  ;  State  v.  Lamb,  28  Mo.  218;  Ruloff  v.  Peo- 
ple, 4  E.  P.  Smith  (X.  Y.)  179;  People  v.  Boorn,  X.  Am.  Re- 
view, vol.  10,  p.  418;  5  Law  Reporter,  195  ■  1  Greenl.  on  Evict. 
§  214;  and  see  1  Wh.  &  St.  Med.  J.  (1873)  ^  200  a.  ;  State  v. 
Traylor,  4  We  tern  Law  Journal,  25  ;  Lamon's  Life  of  Lincoln, 
cited  in  1  Wharton  &  St.  Med.  Jur.  £  794;  Stocking  v.  State,  7 
Ind.  326;  L\  S.  v.Williams,  1  Cliff.  C.  C.  5  ;  State  v.  Williams, 
7  Jones  (N.  C  1  146;  U.S.  v.  Ilewson,  7  Boston  Law  Reporter, 
361 — Story,  J.;  though  see  Com.  v.  1  human,  4  Lair.  269; 
Stair  V.  \'iiK  rut,  24  Iowa,  517  ;  People  v.  Wilson,  3  Parker,  C. 
R.  199;  Lowenstein's  Case,  Wharton  on  Homicide,  §  640, 
(note);  Litis  v.  State,  43  Miss.  472;  State  v.  Skate,  5  Jones 
(  N.  C.)  420  ;  ( Commonwealth  v.  Me  Kir,  1  Gray,  61  ;  ( lommon- 

lih  v.  Andrews  (Pamphlet,  1868);  Hiller  v.  State,  4  Blackf. 
552  ;  State  v.  Thompson,  Wright's  R.  617  ;  Sumner  v.  State,  5 
Blackf.  579;  Emmons  v.  Stahlnecker,  1  Jones's  La.  R.  369; 
Shultz  \.  State,  13  Tex.  401  ;  Jam-  v.  Com.  2  Mete.  (Ky.)  30; 
State  v.  Collins,  20  Iowa,  86;  People  v.  Shuler,  28  Cal.  493; 
v.  Waterman,  1    Nev.   543;  State   v.   Dineen,    ro   Minn. 

407;    B  V.  Stale,     p      Mis.    570;    People    v.   Lrannoii,  4.7 

Cal  O'Neil  v.  State,  48  Ga.  66;  Malone  v.   State,  49   Id. 

210  ;  K.  v.  Jones,  Up.  Can,  Q.  B.  421  ;  Com.  v.  1  Ian  nan,  4 
Barr.  271  ;  Pate  v.  People,  ;  Gilman,  644;  U.  S.  v,  Foulke,  6 
McLean  C,  C.  R.  349;  Giles  v.  State,  6  Ga.  285;  State  v. 
toenwald,  31  Mo.  147  ;  Winter  v.  State,  20  Ala,  59 ;  Com.  v. 
Drum,  58  Penn.  St.  9;  Long  v.  State,  Ga,  191;  State  v. 
Porter,  ,  t  Iowa,  131;  R.  v.  Greenwood,  23  Up.  Can.  Q.  B 
:  '  oin.  v.  Webster,  5  Cush.  320;  Com.  v.  Goodwin,  14 
Gray,  55;  see  R.  v.  White,  4  I  ,  &  I  .  ,;  Pilkinton  v.  State. 
.9  214;   Donelly  v.  State,  2  Dutch.  (X.  I  1  6   i ;   French 

v.  Stat'-,  [2  I  ml.  -  .     .    lane- .  v.  State,  45  Miss.  572  ;  State  \ .  Os- 
t rainier,  1     I  ■  .  1,  435  ;  Commonwealth  v.  Pope,  1    ;  Mass.  440 ; 


392  INSTRUMENTS    OF    EVIDENCE. 

Gardinerv.  People,  6    Parker,  C.  R.    155;  Davis  v.  State,  28 
Md    15;  State  v.  Morphy,  33    Iowa,  270;  State  v.  Porter,  34 
Id.  131;  Com.  v.  Lenox,  3  Brewster,  249;  though  sec   Wilson 
v.  People,  2  Parker  C.  R.  619 ;  Com.  v.  Twitchell,  1  Brewster, 
566;  Commonwealth  \.  Geisenberger,  Wharton  on  Homicide, 
note,  §   679;  Champ    v.  Commonwealth,   2    Mete.   (Ky.)   27; 
Davis  v.  State,  38  Md.  15  ;  Gaines  v.  Commonwealth,  00  Pa. 
St.  319;  State  v.  Knight,  43  Me.    n;  People   v.   Gonzales,  35 
N.  Y.  49;  Commonwealth   v.  Pope,   103    Mass.   440;   Kennedy 
v.  People,  39  X.  V.  245;   People  v.  Lindsay  (Pamphlet,   Syra- 
cuse,  N.   Y.    1875);   Hanby  v.   State,    35   Tex.  523;    State   v. 
Baron,  37  Vt.  57  ;  State  v.  Collins,  20  Iowa,  86  ;  State  v.  Staples, 
47  N.  II.  133  ;  Toler  v.  State,  16  Ohio  St.  5S3  ;  State  v.  Brown, 
25  Iowa,  561;  Tyner  v.  State,  5    Humph.  383;  Com.  v.  Good- 
win,   14  Gray,  55;  Campbell  v.   State,   23   Ala.    44;  State   v. 
Hays,  23  Mo.  (2  Jenes)   2S7  ;  People  v.   Rathburn,   21    Wend. 
509;  Campbell  v.  State,  23  Ala.  28;  Com.  v.  Hersey,  2   Allen, 
173  ;  Gardiner  v.  People,  6  Park  C.  R.  155  ;  State  v.  Phillips, 
24  Mo.  (3  Jones)  475  ;  Golden  v.  State,  25    Ga.   527  ;  Fanning 
v.  State,  14   Mo.  386  ;  Whaley  v.  State,  11   Ga.    123;  Revel  v. 
State,  26  Id.  275;  People   v.   Pitcher,    15    Mich.   397;  State  v. 
Staples,  47  N.  H.  113;  State  v.  Knapp,  45  N.  II.  148;  State  v. 
Jerome,  39  Conn.  265  ;   Hawser  v.  Commonwealth,  51   Pa.  St. 
332;  People  v.Schryver,  42  N.Y.  1 ;  State  v.  Spencer,  1  Zabriskie, 
202  ;  Clark  v.  State,  12  Ohio,  495;  Bonfante  v.  State,  2   Minn. 
123.     See   Com.   v.    Eddy,    7    Gray,   583;    Com.   v.   Rogers,   7 
Mete.  500;    State  v.  Lawrence,  57    Me.  574;   Ferris   v.  People, 
35    N.    Y.    125;   Walter    v.   People.   32    Id.    147;     Flanagan   v. 
People,  52    Id.   467;    People   v.  McCann,  16    Id.  58;   State  v. 
Starling,    6    Jones  (N.  C.)    366:   State  v.  Brandon,   8    Id.    468; 
State  v.  Hundley,  46  Mo.  414  (1870);  State  v.  Klingler,  43  Id. 
127  ;  State  v.  Smith,  53  Id.  267  ;   State  v.  Smith,  Id.  270;  State 
v.  Hundley,  46  Id.  414;   State  v.  McCoy,  34  Id.  531  ;   People  v. 
Coffman,  24  Cal.  230;  State  v.  Felter;  32  Iowa,  50;  McKenzie 
v.  State,    26    Ark.  334;  Lynch  v.  Com.,  cited   in  Com.  v.  Ort- 
wein,   Sup.    Ct.  Penn.  (Jan.  1875,  reported    in  Western    L.  J., 
March,  1875);   Walter  v.  People,  32  N.  Y.  191 ;  People  v.  Gar- 
butt,  17    Mich.  9;  State  v.  Bartlett,  43   N.  II.   224;  Hopps  v. 
People,  31    III.385,  qualifying   Fisher  v.  People,  23    Id.  283; 
Chase  v.  People,  40   Id.  224;  Ogletree  v.  State,  28  Ala.  X.  S. 
701;  Stat--    v.  Crawford,  11   Kan.  32.  Dove   v.  State,  8   Heisk. 
348;  Smith    v.  Com.,  1    Duvall    (Ky.)    224;     Kriel   v.   Com.    5 
Bush,  362;   Polk  v.  Stat.-,  19  Ind.  170;  State  v.  Marler,  2  Ala. 
43;   Bradley   v.  State,  31    Id.  492;   Stevens  v.  State,  31  Id.  485; 
State  v.  Jones,  50   X.  II .   370  ;   Com.  v.  Hawkins,  3  Gray,  463 


REAL     EVIDENCE.  393 

by  Shaw,  C.  J.,  and  by  Curtis,  J.,  in  U.  S.  v  Armstrong,  2 
Curtis,  C.  C.  446;  U.  S.  v.  McClare,  17  Bost.  Law  Rep.  439; 
Kingen  v.  State,  45  Ind.  518;  Gallahan  v.  State,  21  Ohio  St. 
306;  Walker  v.  State,  26  Ind.  290;  State  v.  Peters,  2  Rice's 
Digest,  106;  State  v.  Town,  Wright's  R.  75;  Woodsides  v. 
State,  2  How.  (Miss.)  656;  Conner  v.  State,  4  Yerg.  137;  State 
v.  Irwin,  1  Haywood,  112;  People  v.  McLeod,  1  Hill  (N.Y.) 
379;  U.  S.  v.  Cornell,  2  Mason,  91  ;  Com.  v.  Drew,  4  Mass. 
391  ;  Resp.  v.  Bob,  4  Dallas,  146  ;  Perms,  v.  Honeyman,  Addi- 
son, 148;  State  v.  Zeller,  2  Halst.  220;  State  v.  Merrill,  2  Dev. 
269;  State  v.  Smith,  2  Strobh.  77  ;  Com.  v.  Hill,  2  Gratt.  594; 
U.  S.  v.  Mingo,  2  Curtis,  C.  C.  1  ;  7  Bost.  Law  Rep.  435  ; 
People  v.  March,  6  Cal.  543  ;  State  v.  Knight,  43  Me.  11; 
Riggs  v.  State,  30  Miss."(i  George)  635;  Mitchell  v.  State,  5 
Yerg.  560  ;  State  v.  Johnson,  3  Jones  (N.  C.)  266  ;  Green  v. 
State,  28  Miss.  (6  Cush.)  687  ;  State  v.  Decklotts,  19  Iowa,  447  ; 
State  v.  Shippey,  10  Min.  224;  Murphy  v.  People,  87  111.  447  ; 
Com.  v.  Knapp,  10  Pick.  477  ;  Com.  v.  Stow,  1  Mass.  54  ;  State 
v.  Holme,  54  Mo.  153;  Commonwealth  v.  Dana,  2  Mete.  340; 
Commonwealth  v.  Kimball,  24  Pig.  366;  West  v.  State  1  Wis. 
209  Crilley  v.  State,  20  Id.  209;  Henderson  v.  State,  14 
Tex.  503;  State  v.  MacClure,  5  Lev.  502  ;  People  v.  Lamed,  7 
N.  Y.  448;  Commonwealth  v.  Hardiam,  9  Gray,  136;  People  v. 
Stonecifer,  6  Cal.  405;  People  v.  Arnold,  15  Id.  476;  State  v. 
Morrison,  3  Dev.  299  ;  State  v.  Crowell,  25  M»e.  171  ;  Wheat  v. 
State,  6  Mo.  455 ;  Smith  v.  Jeffries,  9  Price,  257;  Sheldon  v. 
Clark,  1  Johns.  513  ;  U.  S.  v.  I  lav  ward,  2  Gallison,  4S5 ;  Gening 
v.  Stat.-,  1  McCord,  573;  Farrel  v.  State,  32  Ala.  557.;  Hopper 
v.  Stat.-,  [9  Ark.  143;  Mehan  v.  State,  7  Wis.  670;  Com.  v. 
Thurlow,  24  Pick.  374;  Com.  v.  Boyer,  7  Allen,  306;  People 
v.  Bodine,  1  Edm.  (N.  Y.)  Sel.  Cas.  36;  Barrett,  in  re,  28  Up. 
Can.  [}.  li.  561;  Fife  v  Com.,  20  Pa.  St.  (.29 ;  State  v.  Vincent, 
24  Iowa,  570;  Walker  v.  State,  37  Tex.  367  ;  Adams  v.  State, 
42  Ind.  373;  Binns  v.  State,  46  Id.  311 ;  Com.  v.  York,  9  Mete. 
93;  Benn.  &  Heard,  Lead.  Cas.  504;  State  v.  McAllister,  n 
Shepley,  [39;  State  v.  Upham,  38  Me  261;  Satterwhite  v. 
A  a.   65  ;    Wa  t « - 1 1    \ .  State,  1     I  ra.    26  1  ;   Mit<  hell  v. 

Stair,  5    \  1  ;o;  Davis  v.  State,    10  <  ra.   [Ol  ;  Stale  v.    I  iimi.i, 

Wright,  29;  State  v.   Laliyer,  1    Mi  Hamby  v.  State,    6 

Tex.  -.;  ;  People  v.  Milgate,  ;  Cal.  127;  Com.  v.  Drum,  58 
Pa.  Si  .; ;  Coin.  v.  Hawkins,  3  Gray,  163;  Com.  v.  Heath,  n 
Id.  303;    Tweedy    v.   State,   5    Iowa   (Clarke),    i;i;    State   v, 

Kuight,  1;    Me.  11;  State  \.  Bertrand,  5O ,61;   Witt  \. 

State,  6  Cold.  |T. -in  1  1  5;  Staup  v.  Com.,  7  \  Pa  Si  (.58 ;  O'Mara 
v.  Com.,  75  Id.  424;  State  v.  Coffee,  3  Yei  ; ;  Dove  v.  State 


394  INSTRUMENTS    OF    EVIDENCE. 

3  Heisk.  348;  State  v.  Patterson,  45  Vt.  308;  Patterson  v 
People,  46  Barb.  626;  People  v.  Schryver,  3  Hand.  (42  N.  Y.) 
1;  People  v.  Stokes,  53  N.  Y.164;  State  v.  Porter,  34  Iowa, 
[31;  State  v.Willis,  03  N.  C.26;  State  v.  Haywood,  Pfaill. 
(V  CM  ;;;> ;  Maliei-  v.  People,  10  Mich.  212;  Loeffner  v.  State, 
10  Ohio,  590;  Floyd  v.  State,  3  Heisk.  342;  McDaniel  v. 
State,  8  S.  &  M.  tui  ;  State  v.  Hildreth,  8  Ired.  429;  Pierson  v. 

e,  [2  Ala.  149;  State  v.  Holme.  54  Mo.  153;  Com.  v.  York, 
9  Mete.  93;  U.  S.  v.  Lawrence,4  Cranch  C.  C.  514;  Atty-Gen. 
v.  Parnther,  3  Brown  C.  C.  44r  ;  U.  S.  v.  McGlue,  1  Curtis, 
i  ;  State  v.  Spencer,  1  Zabriskie,  202  ;  State  v.  Brandon,  8 
Jones  (N.  C.)  465;  State  v.  Starke,  1  Strobhart,  4.79 ;  State 
v.  Brinyea,  S  Ala.  244;  People  v.  Myers,  20  Cal.  518;  Bos- 
well  v.  Com.,  20  Grattan,  860;  Corn.  v.  Eddy,  7  Gray,  583; 
State  v.  Bertrandt,  3  Oregon,  6i  ;  Kriel  v.  Com.  5  Bush  (Ky.) 
362;  Dixon  v.  State,  13  Fla.  636;  U.  S.  v.  Cornell,  2  Mason, 
91  :  State  v.  Smith,  2  Strobh.  77  ;  Com.  v.  Drew,  4  Mass.  391; 
Res.  v.  Boh,  4  Dallas,  146;  Penn  v.  Honeyman,  Addison,  148; 
Penn.  v.  McFall,  Id.  257;  Penn.  v.  Lewis,  Id.  282;  State  v. 
Zeller,  2  I  la  1st.  220;  State  v.  Merrill,  2  Dev.  269;  People  v. 
McLeod,  i  Hill's  N.  Y.  R.    377;   State   v.   Town,    Wright,   75; 

te  v.  Irwin,  1  Ilayw.  112;  State  v.  Peters,  2  Rice's  Dig. 
106;  State  v.  Turner,  Wright,  20;  Woodsides  v.  State,  2  How- 
ard's Miss.  R.  656;  Dexter  v.  Spear,  4  Mason,  115  ;  Bivens  v. 
State,  6  Eng.  (Ark.)  455  ;  Seaborn  v.  State,  20  Ala.  15  ;  U.  S. 
v.  McGlue,  1  Curtis  Ct.  Ct.  1  ;  People  v.  Clark,  3  Selden,  385  ; 
1'  :ople  v.  Sullivan,  Id.  396;  People  v.  Kirby,  2  Parker  C.  R. 
28;  Kilpatrick  v.  Com.,  7  Casey,  198;  Mitchum  v.  State,  11 
1  l.  615;  Bird  v.  State,  14  Id.  43;  Green  v.  State,  28  Miss. 
;:  Price  v.  State,  36  Id.  531  ;  U.  S.  v.  Mingo,  2  Curt.  C.  C. 
1  ;  U.  S.  v.  Armstrong,  Id.  446;  State  v.  Johnson,  3  Jones  Law 
(  \.  C.)  226;  Com.  v.  York,  9  Mete.  93,  Wilde.  J.,  diss.;  Peo- 
ple v.  Barry,  31  Cal.  357  ;  Clem  v.  State,  31  Ind.  480  ;  Bradley 
v.  State,  Id.  492;  Holland  v.  State,  12  Fla.  r  1 7  ;  McAdams  v. 
-'5  Ark.  405  ;  Murphy  v.  People,  37  111.  447  ;  State  v.  Hoyt, 
13  Minn.  132  ;  State  v.  Bertrand,  3  Or.  61  ;  State  v  Decklotts, 
16  Iowa,  447;  State  v.  Shippey,  10  Minn.  223;  Jeff  v.  State,  39 
Miss.  593  ;  Isaacs  v.  State,  25  Tex. 174;  Clarke  v.  State,  55  Ga.  75  ; 

te  v.  Brown,  12  Minn.  5  58;  though  see  Smith  v.  Com.  j  I  >uvall 
(Ky.)  224;  Coffee  v.  State,  3  Yerg.  283  ;  Duvev.  State,  3  Heisk. 
348;  Hamby  v.  State,  36  Tex.  342  ;  Barcus  v.  State,  49  Miss. 
17;  Mate  v.  Kieth,  9  \ev.  15;  Gale  v.  People,  26  Mich.  157; 
O'Mara  v.  Com.,  75  Penn.  St.  424;  State  v.  Rash,  12  Ired.  382; 
Templeton  v.  State,  27  Midi.  501  ;  State  v.  Green,  35  Conn. 
203;  State  v.  Langford,  Busbee,  436;  Stone  v.  State,  4  Humph. 
27  McCann  v.  People,  3  Parker  C.  R.  272;   State   v.    Watkins. 


REAL     EVIDENCE.  jq5 

9  Conn.  49;  State  v.  Green,  35  Id.  203;  Com.  v.  Smith,  7 
Smith's  Laws,  Appen. ;  2  Wheel.  C.  C.  80;  Commonwealth  v. 
McPike,  3  Cush.  181  ;  Osborne  v.  People.  2  Parker,  C.  R.  583  ; 
People  v.  Robles,  34  Cal.  591;  Mason  v.  State,  42  Ala.  543; 
Heath  v.  Com.,  1  Rob.  (Va.)  735;  see  State  v.  Rash,  12  Ired. 
382;  Johnson  v.  State,  17  Ala.  618;  Walters  v.  People,  6 
Parker  C.  R.  15;  Bottomly  v.  U.  S.,  1  Story,  135;  Dunn  v. 
State,  2  Pike,  229;  People  v.  Hopson,  1  Denio,  574;  People  v. 
Wood,  3  Parker  C.  R.  (X.  V.)  681  ;  State  v.  Raymond,  20  Iowa, 
582  ;  State  v.  Knapp,  45  N.  H.  148;  Keener  v.  The  State,  18 
Ga.  194;  Pritchett  v.  State,  22  Ala.  39;  Campbell  v.  People, 
16  111.  17;  Cornelius  v.  Commonwealth,  15  B.  Monr.  539 ; 
Jewett  v.  Banning,  2J  X.  Y.  27;  Lingo  v.  State,  29  Ga.  470; 
Eloye  v.  State,  39  Id.  718;  Pitman  v.  State,  22  Ark.  574; 
Campbell  v.  People,  16  111.  17;  Pritchett  v.  State,  22  Ala.  39; 
Cornelius  v.  Com.  15  B.  Monr.  539  ;  Little  v.  State,  cited  Ilor. 
&  Thomp.  Self-defense,  487;  State  v.  Goodrich,  19  Vt.  116; 
Holler  v.  State,  37  Ind.  57  ;  Scoggins  v.  People,  37  Cal.  677; 
State  v.  Sloane,  47  Mo.  604;  State  v.  Hays,  23  Id.  287;  State 
v.  Keene,  50  Id.  359;  Powell  v.  State,  19  Ala.  517  ;  Newcomb 
V.  State,  37  Miss.  383;  State  v.  Jackson,  17  Mo.  544;  People 
v.  Henderson,  28  Cal.  465;  People  v.  Lombard,  17  Id.  316; 
though  see  People  v.  Scroggins,  37  Id.  676 ;  Atkins  v.  State, 
16  Ark.  568;  Pridgen  v.  State,  31  Tex.  420;  State  v.  Gregor, 
21  La.  An. 473;  State  v.  Leonard,  6  Id.  420;  .Myers  v.  State, 
33  Tex.  525  ;  State  v.  Mullen,  14  La,  An.  577  ;  Evans  v.  State, 
44  Miss.  762  ;  Hughey  v.  State,  47  Ala.  <;;  ;  Stale  V.  Hays,  23 
Mo.  287;  Harris  v.  State,  47  Miss.  318;  State  v.  Hall,  9  Xev. 
58;  J im  v.  State,  5  Humph.  [46;  Commonwealth  v.  Burgess, 
2  Va.  (  ;    1;  Commonwealth   v.  Smith,  7   Smith's  Laws, 

697;  Respublica  v.  Mulatto  Bob,  t  Dallas,  146;  Maxwell  v. 
State,  1   Heisk.  420 ;  State  v.  Rash,  12    Ired.  382;  Johnson  v. 

te,  17  Ala.  618;  Archbold's  C.  P  ;;  Heath  v.  Com.,  1 
Robin.  (Va.)  735 ;  State  v.  Wentworth,  37  V  II.  [96;  Dunn 
v.  State,  2  Pike,  229 ;  Hopkins  v.  (  om.,  i  1  Wright,  9  ;  State  v. 
Alford,  31  Conn  }o;  Stephens  v.  People,  1  Parker  C.  R.396; 
La  Beau  v.  People,    j  1  N.   V.   ••;;   Pitman    v.  State,    •■   Ark, 

.   Mimms  v.  State,  16  Ohio  St.  221  ;  see    Moore   v.  Stat< 
Id.  500 ;  (  lie  k   v.  Siat'-,  40  Ind.  ;  '     m.,  50 

Penn.  St.  9 ;  Dixon  v.  State,  13   Fla.  636;   Nesbil   \.   State, 
Ga      ,•;    Pempleton  v.  People,  ■;  Mich       t;   People  v.  Win- 
1 '  1  .   ■■<   Cal.   6    •  ;   People    v .    I  lendi  i<  ks<  >n,    1    Parkei    I      R. 

■  ;  I  [anby  v.  State,  ;'-  T<  ;  1  v.   Stati  .    6   V  Y. 

642;  see  alsc    Wharton    on    Criminal    Law,  7th   ed  -5; 

Burrill  on  Circumstantial  Evidence,  1  Greenleafon  Evidence, 
§  53 ;  2  Russel  on  Ci  imes,  777. 


390  INSTRUMENTS     OF    EVIDENCE. 


PART    III. 
DOCUMENTS. 

CHAPTER   I. 

DOCUMENTARY    EVIDENCE    IN    GENERAL. 

PARAGRAPH 

Documents •  2I5 

Necessarily  come  to  the  cognizance  of  tribunals  through  human  tes- 
timony    .......         210 

How  obtained  when  wanted  for  evidence 216 

When  in  possession  of  the  opposite  party 216 

When  in  possession  of  a  third  party 216 

Admissibility  and  construction  of  to  be  decided  by  the  judge     .         .  216 

Secondary  significations  of  "  Writing  "  and  "  \\  vitten  Evidence"          .  217 

Secondary  signification  of  "Instrument" 217 

Divisions  of  Writings 218 

1.  Public  and  Private             . 2l8 

2.  Judicial  and  Not  Judicial    ........  2lS 

3.  Of  record  and  Not  of  record    ........  218 

Public  writings 219 

Private  writings 22C 

Deeds 220 

I  i.uruments  not  under  seal           . 221 

Wills 222 

Meaning  of  the  rules  "Parol  evidence  is  inferior  to  Written,"  &c.     .         .  223 

V.  ritten  narratives  or  memoranda  to  refresh  the  memories  of  witnesses  224 

Principle  " '^u'.iii'ido  quid  con>tituitur  eodem  modo  dissolvitur"       .         .  225 

Extrinsic  evidence 226 

Not  in   general  receivable  to  contradict,  vary,  or  explain  written  in-  226 

Struments 226 

Exceptions 226 

I.   Difference  b'-tween  latent  and  patent  ambiguities    .         .         .  22c 

Difference  between  ambiguity  and  un intelligibility       .         .  226 

Difference  between  inaccuracy  and  ambiguity  of  language      .  226 
a.  Admissible  to  impeach  wri             itruments  for  duress,  menace, 

fraud,  covin,  or  collusion 227 

3.  Evidence  of  usage  admissible   to  explain  written  instruments  228 


DOCUMENTS. 


397 


rnitrrlineations,  erasures,  &<:.  in  written  documents    . 

Stat.tps 

Lost  documents  presumed  to  have  been  duly  stamped 
Unstamped  documents  admissible  fr  collateral  purposes,  &c. 
Since  17  &  iS  Vict.  c.  S3,  s.  26,  not  required  in  criminal  cases   . 
Alterations  introduced  by  tbe  17  &  tS  Viet.  c.  125,  in  civil  cases 


PARAGRATH 
.   220 


22° 
230 
230 
231 
231 


215.  The  remaining  instruments  of  evidence  are 
documents,  under  which  term  are  properly  included 
all  material  substances  on  which  the  thoughts  of  men 
are  represented  by  writing,  or  any  other  species  of 
conventional  mark  or  symbol.  Thus  the  wTooden 
scores  on  which  bakers,  milkmen,  &c.  indicate,  by 
notches,  the  number  of  loaves  of  bread  or  quarts  of 
milk  supplied  to  their  customers ;  the  old  exchequer 
tallies,  (a)  and  such  like,  are  documents  as  much  as 
the  most  elaborate  deeds.  In  some  instances,  no  doubt, 
the  line  of  demarkation  between  documentary  and  real 
evidence  seems  faint  ;  as  in  the  case  of  models  or 
drawings,  which  clearly  belong  to  the  latter  head,  but 
differ  from  that  which  we  are  now  considering  in  this, 
that  they  are  actual,  not  symbolical  representations. 


(it)  These    tallies  were  used    as  ac- 
quittani  1  tue  to  the  <  rown, 

and  I  other  purpo  es.    A  1 

of  wo> id,  about  1  v.  1  1  feel  loir;,  w a 
into   a   particular   tin  rm,   and 

scored  with   :  ■>(  differ 

hi  denomination 

1      in  .  ' 
of  pounds  ;  after  win 
ivcly    hu  tens,    and     unil 

by  still  Em al lei  not 
'I  he  wood  was  then  splil  down 
middle,  into  two  |  .<< 

(1    through    the    notch 

port  fiver  on'  ■nut- 

ant,  &C,  win 

the  other  was  kept  1>) 

and    called    the    '  I  he 

irregular    form    of    the    tally,  together 


with  the  natural  inequalities  in  the 
grain  of  the  won.],  rendered  fabrica- 
tion extremely  difficult.  '1'allies  having 
bolished,  and  receipts  sul>.ti- 
tuted  by  -•;,  Geo.  ;.  c.  S2,  and  4  &  5 
Will.  4,  c.  15,  those  m  <  were 

oyed  .1-  I   •■ .  however, 

h.i\ ■  ed  in   the  rem  nv 

brancet  h  ith  a  \  iew  oi  v 

author  has   been   kindly  favor  d. 
i    on  the  Bubji  cl    oi 
.  1 1  .'  ■        de   Si  ai  1  ai io,  li 
C.5  ;  Ma   .!    I  l    ■    l 

Gilb     1      h  p.  9.     Tallii     are  in 

1  d  by  law 

<  ivil,  liv.  3,  tit. 
t,   .'    3,  art.   1 353 :    I 
l  i.uic  des  Preuves,  ,'ji  6x4  616,  and 

335- 


398  INSTRUMENTS    OF    EVIDENCE. 

2l6.  Documents,  being  inanimate  things,  neces- 
sarily come  to  the  cognizance  of  tribunals  through  the 
medium  of  human  testimony;  for  which  reason  some 
old  authors  have  denominated  them  dead  proofs  (pro- 
batio  mortua),  in  contradistinction  to  witnesses,  who 
are  said  to  be  living  proofs  (probatio  viva).  (6)  When 
documents  which  are  wanted  for  evidence  are  in  the 
possession  of  the  opposite  party,  a  notice  to  produce 
them  should  be  served  on  him  in  due  time  before  the 
trial;1  when,  if  he   fails  to  produce  them,  derivative, 

(/')  Eract.  lib.  5,  fol.  400  b  ;  Co.  Lilt.  6  b. 

1  The  notice  must  be  reasonable  (Dean  v.  Berder,  15  Tex. 
29S;  United  States  v.  Winchester,  2  McLean,  135  ;   Farnsworth 
v.  Sharp,  5  Sneed  (Tenn.)  615  ;   Potior  v.  Barclay,  15  Ala.  4.39; 
Gunier  v.  Fall,  15  Cal.  63;   Bank  of  South  Carolina  v.  Brown, 
Dudley  (Ga.)  62;  Jefferson  v.  Conaway,  5   Harr.  16;  State  v. 
Lockwood,    5    Blackf.    (Ind.)    145;    Kimble    v.   Joslin,   Overt 
(Tenn.)  3S0 ;  Carlard  v.  Cunningham,  37  Pa.  St.  288;   Ander- 
son Bridge  Co.  v.  Applegate,  13  Ind.  339;  Patterson  v.  Linden, 
14  Iowa,  414;   Dukey  v.  Ashby,  2  A.  K.  Marsh.  (Ky.)  1  1  ;   Wil- 
liams v.  Benton,  12   La.  Ann.  91;   Kennedy  v.   Fowke,  5  Har. 
c^  J.  63;   Robertson    v.  Parks,  3    Md.  Ch.  65  ;   Commonwealth 
v.  Emery,  2   Gray  (Mass.)   80;    Browne  v.   Boston,  Id.    494; 
Lew  ire  v.  Dille,  17   Mo.  64;   Farmers,  &c.  Bank  v.  Lonergan, 
21    Id.  46;  Ford   v.  Manson,  4  Johns.  220;  Week   v.  Lyon,  18 
Barb.  530.     And  consult,  as  to  the  rule  as  to  various  descrip- 
tions of  documents  and  writing's  in  the  United   States,  A  1  well 
v.  Grant,  11  Md.  101  ;  Central  Hank  v.  Allen.  16  Me.  41 ;   Fau- 
bault  v.  Ely,   2   Dev.  (X.  C.)  L.  67  ;   Eagle  Bank  v.   Chapin.  3 
Pick.  180;  Falkner  v.  Beers,  3   Dougl.  (Mich.)  117;  Cristy  v. 
Home,  24  Mo.  242;   Leavitt  v.  Simes,  3  N.  H.  14;   Morrow  v. 
Commonwealth,  4S  Pa.  St.  305  ;  Rusk  v.  Sowrerwine,  3  Har.  & 
J.    (Md.)    97;     Blood    v.  Harrington,   8    Pick.   552;    Harris   v. 
Whiicomb,  4   (/ray  (Mass.)  433;   Commonwealth  v.  Parker,  2 
Cush.  212;  Watkins  v.  Pintard,  1   X.  J.  L.  (Coxe)  378;  Waring 
v.  Warren.  1  Johns.  340;   Ledbetter  v.  Morris,  1  Jones  (X.  C.) 
L.  545;  Murchison    v.  McLeod,  2   Jones  (X.  C.)  239;  DennU 
v.  Barber,  6  Serg.  ^  R.  420;   Clifton  v.  United  States,  4  I  low. 
242;  Thomas  v.  Harding,  8   Me.  18  (Greenl.)  417  ;  Phillips  v. 
Scott,  43    Mo.     6;    L'halhimer   v.  Brinckerhoff,  6    Cowen,  90  ; 
King  v.  Lowery,  20   Barb    532;   Lambert  v.  Lambert,  11   [red 


DOCUMENTS.  399 

or,  as  it  is  technically  termed,  "  secondary  "  evidence 
of  their  contents  may  be  given.1  (V)     When   they  are 

(<■)  Bk.  3,  pt.  2,  ch.  3. 

L  162  ;  McCracken  v.  McCrary,  5  Jones  (X.  C.)  L.  399 ;  Beates 
v.  Retallick,  23  Pa.  St.  2SS  ;  West  Branch  Ins.  Co.  v.  Helfen- 
stein,  40  Id.  298;  Henderson  v.  State,  14  Tex.  503  ;  Bonner  v. 
Home  Ins.  Co.,  13  Wis.  677;  Bright  v.  Young,  15  Ala.  112; 
Rawley  v.  Doe,  7  Blackf.  (Ind.)  143;  Smith  v.  Reed,  7  Id.  242; 
Greenongh  v.  Shelden,  9  Iowa,  503  ;  McDowell  v.  Hall,  2  Bibb 
(Ky.)  610;  Bank  of  Kentucky  v.  McWilliams,  2  J.  J.  Marsh. 
(Ky.)  256 ;  McQueen  v.  Sandel,  15  La.  Ann.  140;  Lowell  v. 
Flint,  20  Me.  401  ;  Thayer  v.  Middlesex  Mutual  Insurance  Co., 
10  Pick.  (Mass.)  326;  Narragansett  Bank  v.  Atlantic  Silk  Co., 
3  Mete.  (Mass.)  2S2  ;  Loring  v.  Whittemore,  13  Gray  (Mass.) 
228;  Cooper  v.  Granberry,  33  Miss.  117;  Fraux  v.  Fraux,  2 
N.  J.'L.  (1  Penn.)  166;  Jackson  v.  Livingston,  7  Wend.  (N.  V.) 
136;  Sheldon  v.  Wood,  2  Bosw.  (N.  Y.)  267;  Faribault  v.  Ely, 
2  Dev.  (X.  C.)  L.  67;  Sally  v.  Geinter,  13  Rich.  (S.  C.)  72; 
Maxwell  v.  Light,  1  Call  (Va.)  117;  Goekell  v.  Morns,  7 
Watts  &  S.  315  ;  M  uller  v.  Hoyt,  14  Tex.  49;  Webster  v.  Clark, 
30  N.  II.  (10  Foster)  245;  Dennis  v.  Barber,  6  Serg.  &  R.  420; 
Reading  R.  R.  Co.  v.  Johnson,  7  Watts  &  S.  317).  [fa  writing 
Le  in  court,  no  notice  to  produce  it  is  necessary  to  let  in  parol 


1  As  to  the  rules  regulating  the  admission  of  secondary 
evidence.  •■■  \  aiders  v.  Sternberg,  2  Abb.  (N.  Y.)  App.  Dec. 
31;  Rice  v.  Davis,  7  bans,  363;  Hanson  v.  Eustace,  2  How. 
(U.  S.)  653.  The  protest  ol  a  note,  authenticated  by  the  sig- 
nature and  official  seal  of  a  notary,  found  among  Ids  papers 
after  h  ith,  is  competenl    secondary  evidence  ol  his  a 

(Porter  v.  Jud  on,  1    Gray  (Mass.)   175).     A    mortgage   mt 
under   a     tatut     which    recited    the    acceptance,  which    the 
draughtsman  ol  the  mortgage  testified  to  copying   from  the 
corporati  uffi<  ienl  evidence  ol  acceptance  by  a  cor- 

poration ol    certain    acts  of   the    legislatun     (Sinking    Fund 
(  Northern  Bank,  &c,  1  Mete.  (Ky.)  x 74).     Parol  evi- 

dence ol  of  papers  relating  to  facts  collateral  to  the 

ue,   1  ■  enl   t  M  urn  ford    v.   Bowne,   Am  h,   1  V   V  1 

1  'loot  tin!  .1  per  ,on  is  generally  reputed  an  officer,  and   is  a<  - 
tually    in    tl        1   cerci  e    ol    an    office,    will    ordinarily 
Bufficieni  evidence  ol  the  facl  (Allen  v.  M'Neel,  1   M  I    1 

,  Const.    459;  People   v.  Clingan,   5    Cab  389)      Where  ih 
;n  ■     d  in      ■■'  mdai  y    evident  e,    t  hi  hould    be 

produced,     A    -.worn   copy  ol  a   written    instrument    will  b« 


4oo  INSTRUMENTS    OF    EVIDENCE. 

in  the  possession  of  a  third  party,  he  should  be  served 

with    what  is  called    a  subpoena  duces  tecum,  i.e.,  a 

summons  to  attend  the  trial  as  witness  and  bring  the 

evidence  of  its  contents  (Dana  v.  Boyd,  2  J.  J.  Marsh.  587) ; 
or  where  the  writings  are  a  proper  matter  of  defense  (Kellar 
v.  Savage,  2  Me.  199);  or  if  the  party  who  would  otherwise 
be  notified  offer  to  produce  the  papers,  and  fails  to  do  so,  with- 
out asking  further  time  (Dwinell  v.  Larrabee,  38  Me.  464);  or 
where  the  party  is  charged  with  their  fraudulent  possession 
(Gray  v.  Kernahan,  2  Mill.  (S.  C.)  Const.  65  ;  Morgan  v.  Jones, 
24  Ga.  155;  State  v.  Mayberry,  48  Me.  218,  S.  P.;  Rose  v. 
Lewis,  10  Mich.  483;  Hart  v.  Robinett,  5  Mo.  n;  Meally  v. 
Greenough,  25  X.  II.  (5  Fost.)  325  ;  Hammond  v.  Hopping,  13 
Wend.  505;  Hardin  v.  Kretsinger,  17  Johns.  293;  Edwards  v. 
Bonneau,  1  Sandf.  (N.  Y.)  610;  Forward  v.  Harris,  30  Barb. 
338;  Pickering  v.  Myers,  2  Bailey  (S.  C.)  113;  Hamilton  v. 
Rice,  15  Tex.  382);  nor  in  an  action  to  recover  the  amount  of 
a  forged  bank  note  (Luckett  v.  Clark,  Litt.  (Ky.)  Select  Cases, 
17S) ;  nor  if  the  document  is  hopelessly  lost,  or  out  of  the  pos- 
session of  parties  or  the  jurisdiction  of  the  court  (McCrcery 
v.  Hood,  5  Blackf.  1 16;  McCaulay  v.  Earnhart,  1  Jones  (N.  C.) 
L.  502;  and  see  Bowman  v.  Welting,  39  111.  416;  Mitchell  v. 
Jacobs,    17    Id.  236;    Shepherd    v.  Giddings,   22    C'mn.    282; 

preferred  to  verbal  testimony  to  prove  its  contents,  unless 
the  writing  be  impeached  for  fraud,  duress,  or  other  legal 
reason  (Williams  v.  Waters,  36  Ga.  454).  Where  a  vessel  was 
insured,  with  a  warranty  that  she  should  be  furnished  with  a 
license  from  the  British  admiral  in  the  usual  form,  evidence 
that  a  witness  saw  a  license  from  the  British  admiral  on  board, 
that  he  had  seen  a  number  of  them,  and  that  this  was  in  the 
usual  form,  is  sufficient  evidence  that  such  a  license  was  on 
board  (Bulkey  v.  Derby  Fishing  Co.,  1  Conn.  572).  So  as  to 
lost  documents,  it  is  competent  to  prove  by  the  clerk  of  court 
the  cause  of  action  upon  a  judgment,  record  of  which  was 
destroyed  by  the  burning  of  the  court-house  (Jones  v.  Lewis, 
37  M  :  and  see  Pierce  v.  Bank  of  Tennessee,    1    Swan. 

263  ;  White  v.  Barney,  27  Tex.  50;  Thomas  v.  Harding,  8  Me. 
(8  Green  1. J  417;  Routh  v.  Agricultural  Bank,  20  Miss.  (12 
Smed.  &  M  )  [61  ;  Davis  v.  Petit,  11  Ark.  349;  Marshall  v 
Morris,  16  Ga.  368).  Secondary  evidence  of  an  order  of  bj 
the  proper  court  to  sell  attached  goods,  is  admissible,  when 
the  original  order  cannot  be  found  (MacLaren  v.  Birdsong, 
24  Ga.  265),  but  the  name  of  a  lost  paper  cannot  control  dis- 


DOCUMENTS.  401 

documents    with    him.     The    person   on    whom  such 

a  subpoena  has  been  served  is  bound  to  obey  it,  so  far 

as  attending   the    trial   and    bringing  the    documents 

Bright  v.  Pennywit,  21   Ark.  130;    Pond  v.  Lockwood,  8  Ala. 
669). 

The  following  peculiar  or  exceptional  cases  maybe  noticed: 
In  trover  for  a  bond,  notice  to  produce  it  at  the  trial  is  not 
necessary  to  enable  the  plaintiff  to  give  parol  evidence  of  its 
contents  (Hays  v.  Riddle,  1  Sandf.  (X.  Y.)  248).  A  party  is 
not  bound  to  pay  any  attention  to  a  verbal  notice  to  produce 
a  paper  on  the  trial  of  a  cause  (Cummings  v.  McKinney,  5  111. 
(4  Scam.)  57).  Notice  given  the  day  before  a  trial,  to  produce 
a  paper  in  the  possession  of  a  person  eighty  miles  distant, 
renders  the  introduction  of  secondary  evidence  proper  (Cody 
v.  Hough,  20  111.  43).  Where  a  party  notified  to  produce  a  re- 
ceipt lives  within  fifty  yards  of  the  court-house,  and  asks  until 
the  next  day,  parol  evidence  of  the  contents  of  the  receipt 
may  be  admitted  (Buckner  v.  Morris,  2  J.  J.  Marsh.  (Ky.)  121). 
Notice  to  produce  a  book  of  account  given  on  the  evening 
previous,  sufficient,  where  the  counting-house  of  the  party  was 
mar  the  court-house  (Shreve  v.  Dulany,  1  Cranch  C.  Ct.  499). 
Notice  to  a  party,  several  days  before  a  trial  time,  to  produce  a 
writing,  is  sufficient  to  admit  parol   evidence  of  its  contents, 


tinct  proof  oi  its  contents  (Hell  v.  McCawley,  29  Ga.  355). 
Parol  proot' of  tin-  contents  of  a  losl  deed  must  be  so  clear 
and  positive  a,  to  leave  no  reasonable  doubt  of  tin-  substance 
of  tin-  parts  material  to  its  effect  (Bennett  v.  Walker,  23  111. 
97);     hut     it     will    he    sufficient    if  intelligent     witnesses    who 

have  read  the  paper  understand  its  object,  and  can  state  it 
with  jui''  i  ion  (Po  ten  v.  Ra     ette,  5  ("a I.  467) ;  hut  if  a  party 

voluntarily  desl  royed  a  written  in  trument, hecannol  prove 
its  contents  b  »ndary  evidence  unless  he  repels   inference 

oi  a  fraudulent  de  ign  in  tructipn  (Blake  v.   Flash,  44 

III.  foannes  v.  Bennett,  5  Allen  (Ma:  ».)  [69).   In  Hooper 

v.  Chi  Ark.  496),  it  wa    held  thai  where  a  hill  of  ■  al< 

warranty  is  alleged  to  #be  lost,  and   its  contents,  as   alleged, 
I  by  the  an  wer,  they  should  he  1  ub  tantially  proven, 
when  00  1  opy  i  i  produced,  by  a  witness  who  h  en  or  read 

the  in  trument,  or  is  01  he,  nabled  to  speak  with  some  de- 

gree ol  accui  •  1  ii     contents,  and  identify  it  as  the  one 

■  uted  by  the  party  to  he  .  harged,     Prool  of  the  1  ontentg 
oi  a  lost  paper  should  he  the  besl  the  party  ha  ■  in   hi     pov 
to  produce  (R<  nner  v.  I  Junk  of  Columbia,  ■,  Wheat.  581).  The 

2b 


402  INSTRUMENTS     OF    EVIDENCE. 

with  him  ;  but,  In*  analogy  to  the  principles  ahead) 
explained,  {</ )  he  will  not  be  compelled  to  produce 
them,  if  the  disclosure  might  subject  him  to  crimina- 

1  (,/)  Supra,  pt.  i,  ch.  I. 

even  though  the  plaintiff  resides  out  of  the  state  (Jefford  v. 
v.  Ringgold,  6  Ala.  544).  Papers  are  not  made  evidence  by  a 
notice  calling  upon  the  other  party  to  produce  them,  but  the 
partv  requesting  them  may  waive  reading  them  (Blight  v. 
Ashley,  Pet.  15).  A  notice  given  at  the  bar  during  the  progress 
of  a  trial,  to  produce  a  paper,  is  not  sufficient,  unless  the 
paper  is  in  court  at  the  time,  and  in  possession  of  the  party 
upon  whom  demand  is  made,  or  where  easy  of  access  (Atwell 
Miller,  6  Md.  10;  Board  of  Justices  v.  Fennimore,  1  N.  J.  L. 
(Coxe)  242;  M'Pherson  v.  Rathbone,  7  Wend.  (N.  Y.)  216), 
but  notice  given  after  the  commencement  of  a  circuit,  and 
four  days  previous  to  the  trial,  where  plaintiff's  residence  is 
within  twelve  miles  of  the  place  of  trial,  is  sufficient  (Ham- 
mond v.  Hopping,  13  Wend.  (N.  Y.)  505  ;  but  see  Durkee  v. 
Leland,  4  Vt.  612  ;  Hastings  v.  Power,  1  Tyler  (Vt.)  272;  S. 
P.,  Barker  v.  Barker,  14  Wis.  131  ;   Bartin   v.  Kane,  17  Id.  37). 

best  evidence  of  the  contents  of  a  lost  instrument  is  a  sworn 
copy  of  the  original  (Evans  v.  Boiling,  8  Port.  (Ala.)  546). 
The  contents  of  letters  which  are  lost  may  be  shown  by  any 
one,  without  accounting  for  the  non-production  of  the  person 
to  whom  they  were  written  (Drish  v.  Davenport,  2  Stew.  (Ala.) 
226).  Where  ihere  is  no  subscribing  witness  to  a  lost  deed, 
its  contents  may  be  proved  by  any  one  who  has  read  it,  and 
knows  what  it  contains  (Nolen  v.  Gwyn,  16  Ala.  725  ;  Fralick 
y.  Presley,  39  Id.  457  ;  and  see  further  Coman  v.  State,  4  Blackf. 
(Ind.j  251;  Higgins  v.  Reed,  8  Iowa,  298;  Bradbury  v. 
Dwight,  3  Mete.  (.Mass.)  31  ;  Whitney  v.  Sprague,  23  Pick. 
[98;  Thayer  v.  Barney,  12  Minn.  502;  Livingston  v.  Rogers, 
1  Caine's  Cas.  27  ;  2  Johns.  Cas.  488;  Jackson  v.  Vail,  7  Wend. 
125;  Sizerv.  Burt, 4  Den.  426;  Moffat  v.  Moffat,  10  Bosw.  (N. 
V.j  468;  Halsey  v.  Blood,  29  Pa.  St.  319;  Williams  v.  Metter, 
1  Wash.  Ter.  105  ;  Hill  v.  Parker,  5  Rich.  (S.  C.)  87  ;  Arthur 
v.  Gayle,  38  Ala.  259;  Jordan  v.  Fenno,  13  Ark.  593;  Kelsey 
v.  Hammer,  18  Conn.  311  ;  Coffeen  v.  Hammond,  3  Iowa,  241  ; 
Hawkins  v.  Craig,  1  B.  Monr.  (Ky.)  27  ;  Scammon  v.  Scam- 
•non,  33  X.  II.  52  ;  Hamilton  v.  Van  Swearingen,  Add.  (Pa.) 
48;  Mayson  v.  Beazlev,  27  Miss.  106;  Darby  v.  Garrick,  2 
Rich.  (S.  C.)  532  ;  Pierce  v.  Bank  of  Tennessee,  1  Swan. 
(Tenn.)  265  ;  White  v.  Barney,  27  Tex.  50). 


DOCUMENTS.  403 

tion,  penalty,  or  forfeiture.  So  a  party  will  not  be 
required  to  produce  the  muniments  of  title  to  his 
estate,  (c)  nor  will    his   attorney  to  whose  care   they 

(e)  Tayl.  Ev.  §§  42S,  131S,  4th  ed. 

Where  plaintiff  gives  notice  to  the  defendant  to  produce  an 
original  contract,  and  affixed  to  the  notice  a  copy  thereof, 
which  was  not  an  exact  copy,  but  indicated  with  sufficient 
certainty  what  was  meant,  the  notice  is  sufficient  (Bogart  v. 
Brown,  5  Pick.  (Mass.)  r8  ;  Bemis  v.  Charles,  1  Mete.  (Mass.) 
440).  A  deed  produced  by  a  party  at  a  trial,  pursuant  to  a 
notice  to  him  from  the  opposite  party,  is,  prima  facie,  to  be 
taken  to  be  didy  executed,  and  may  be  read  in  e\  idence,  with- 
out proof  of  its  execution  (Betts  v.  Badger,  12  Johns.  (N.  Y.) 
223  ;  Jackson  v.  Kingsley,  17  Id.  157  ;   but  see  llylton  v.  Brown, 

I  Wash.  343).  A  paper  produced  on  notice,  must  be  proved  by 
him  who  oilers  it,  in  like  manner  as  if  he  had  himself  pro- 
duced it,  unless  the  party  producing  it  be  a  party  to  the  in- 
strument, or  claim  a  beneficial  interest  under  it  (Rhodes  v. 
Selin,  4  Wash.  715).  Where  a  party  in  possession  of  a  paper 
is  served  with  notice  to  produce  it,  such  paper  is  not  evidence 
for  him  until  it  is  delivered  to  the  other  party  lor  inspection, 
after  which   it   is  evidence  for  the  party  producing  it,  if  not 

II  ed  by  the  party  calling  for  it  (lb.).  When  notice  is  served 
by  one  party  to  a  suit  upon  the  other,  to  produce  a  certain 
paper,  and  [he  party  produces  a  paper  not  answering  in  all 
particulars  the  one  described  in  the  notice,  and  states  al  the 
same  time  thai  it  is  the  only  paper  in  his  possession  of  the 
kind  called  lor,  tin-  statement  is  nol  evidence  lor  the  jury 
(Anderson  v.  Root,  [6  .Miss,  (.s  Smed.  &  ML)  362).  When 
under  notice  to  produce  a  deed,  a  party  produces  a  copy  and 

l in  -,  under  it,  no  proof  oi  i t  ^  correctness  or  oi  1  he  execution 
oi  the  original  is  nece    ary  as  again  1   him  (Herring  v.  Ri 

.  ;    ( -  1   615).     A  notice  to  produce  p  on  a  trial  to  be 

had  this  day,  is  a  notice  to  produce  1  lien  1  on  a  trial  at  a  sub- 
sequent term  (State  v.  Kimborough,  2  Dev.  (V  <  |  L.  431 ; 
Jackson  v.  Shearman.  6  Johni  1 9).  But  it  is  not  nece  iry  to 
give  notice  to  produce  an  a  vrard,  in  posses  ion  ol  the  opposite 
party,  before  offering  evidence  as  to  it  ( s  ott  v.  1 ;  !  '■•■ 

St.  330;  and  see   Dana    v    Conant,  30    Vt.   246;  Gilmore  v 
Wale,  Anth.  (N.  Y.)  64;   Patten  v.  Goldsborough,  9  Serg.  &  Is. 

1.)  47;  Den  v.  M'Allister,  7  N.  J.  I-  (  •  Hal  |  [6\  Divers  v. 
Koulton,  8  (.ill  &  J.  1  Md  1  1  1  ;  Walden  v.  I  >a  ,  i  on,  1a  Wend. 
65  ;  Cross  v.  Bell,  34  N.  H      [ ;  Ea  itman  v.  Am  ■•.  &c.  Co. 


.:  4  INSTRUMENTS    OF    l-VWENCE. 

have  been  entrusted  ;  (/)  and  in  cither  case  indepen- 
dent secondary  evidence  of  their  contents  may  be 
given.  (  g)  The  admissibility  of  documents  in  evi- 
dence, as  well  as  all  preliminary  questions  of  fact 
on  which  that  admissibility  depends,  (/i)  and  their 
legal  construction  when  received,  are  to  be  decided  by 
the  judge;  other  questions  respecting  them  are  for 
the  jury. 

217.  Although  documentary  evidence  most  usually 
presents  itself  in  a  written  form,  the  terms  "  Writing" 
and  "Written  evidence"  have  obtained  in  law  a 
secondary  and  limited  signification,  in  which  they  are 
commonly,  but  not  always  used  :  and  much  confusion 
has  arisen  from  the  ambiguous  meanings  of  these 
terms.  This  matter  cannot  be  more  clearly  explained, 
than  in  tjic  following  passage  from  one  of  the  most 
eminent  of  the  French  jurists  :  "The  force  of  written 
proofs  consists  in  this,  that  men  have  agreed  together 
to  preserve  by  writing  the  recollection  of  things  past, 
and  of  which  they  were  desirous  to  establish  the 
remembrance,  either  as  rules  for  their  guidance,  or  to 

(/)  Hibbert  v.  Knight,  2  Exch.  11  ;  (g)  Ver  Hill,  J.,  R.  v.  Leatham,  3 

Doe   d.   Gilbert   v.   Ross,  7    M.  &  W.  E.  &  E.  658,  668 ;  and  sec  infra,  bk. 

102  ;  Ditcher  v.  Kenrick,  r  Car.  &  P.  3,  pt.  2,  ch.  3. 

161  ;  Volant  v.  Soyer,  13  C.  B.  231.  (//)  Bk.  1,  pt.  1,  §  82,  and  note  (r). 

44  N.  II.  143;  Jackson  v.  Shearman,  6  Johns.  19;  Jackson  v. 
Newton,  14  Id.  335;  Sedgwick  v.  Waterman,  2  Root,  434", 
Merwin  v.  Ward,  15  Conn.  377  ;  Bell  v.  Chandler,  23  Ga.  356  ; 
Rector  v.  Rector,  8  111.  (3  Gilm.)  105  ;  Shortz  v.  Unangst,  3 
Watts  &  S.  45  ;  Stover  v.  Ellis,  6  Ind.  152;  Madison,  &c.  R.  R. 
Co.  v.  Whitesel,  11  Id.  55  ;  Norton  v.  Keywood,  20  Me.  395  ; 
Life  c<  Fire  Ins.  Co.  v.  Mechanics  Ins.  Co.,  7  Wend.  31;  Han- 
son v.  Eustace,  2  How.  U.  S.  653;  Jewell  v.  Center,  25  Ala. 
498;  Hunt  v.  Collins,  4  Iowa,  56  ;  Spring  Garden  Mutual  Ins. 
Co.  v.  Evans,  9  Md.  1  ;  Newson  v.  Davis,  20  Tex.  419;  Chaf- 
fee v.  Cox,  1  Hilt.  (N.  Y.)  78;  Reddington  v.  Gilman,  1  Bosw. 
235  ;  Barber  v.  Lyon,  22  Barb.  622  ;  Reid  v.  Colock,  1  Nott. 
&  Mc.  (S.  C.)  592;  Tillery  v.  Simmons,  1   Overt.  (Tenn.)  209). 


DOCUMENTS. 


405 


have  therein  a  lasting  proof  of  the  truth  of  what  they 
write.  Thus,  agreements  are  written  to  preserve  the 
remembrance  of  what  the  contracting  parties  have 
prescribed  for  themselves,  and  erect  that  which  has 
been  agreed  on  into  a  fixed  and  immutable  law  for 
them.  So  wills  are  written,  to  establish  the  recollec- 
tion of  what  a  person  who  had  the  right  to  dispose 
of  his  property  has  ordained,  and  make  thereof  a  rule 
for  his  heir  and  legatees.  In  like  manner  are  written 
sentences,  decrees,  edicts,  ordinances,  and  everything 
intended  to  have  the  effect  of  title,  or  of  law,  <x.c.  . 
.  .  .  The  writing  preserves  unchangeably  what  is 
entrusted  to  it,  and  expresses  the  intention  of  the 
parties  by  their  own  testimony."  (z )  Now  it  is  to 
such  documents  as  are  here  spoken  of,  that  the  terms 
"writing"  and  "written  evidence"  are  commonly 
applied  in  our  books.  (/£*)  The  civilians  and  canonists 
appear  to  have  included  all  such  under  the  general 
name  of  "  Instruments;"  (/)  but  among  us   this   term 


(t)  Domat,  Lois  Civiles.  pt.  1,  liv.  3, 
tit.  6,  sect.  2.  See  'lie  original,  supra, 
Introd.  ]>t.  2,  §  60.  S<>  de  ids  usually 
inn,  "  Now  this  indenture  eth, 

;"     and    conclude,     "  In    wil 

whereof,  &c. ;"  and  .    1  ts  1  om- 

ly    say,    "  It    is    hereby    agi 

{k)   The  vord   "  wti'i 
the   Norman   French  "escript,"  have 

11  ed  in  1I1:  I     in  the  ear- 

:    ne  .     See    I. i". 
I    tt.  352  a ;  5  Co.  26  a.   S<.  in  2  Edw. 
1  .     \,  A.  &    B.  N"'.i  ')    I 
'aver    pled    csi  rip!    ]/•■!     \   iy 

voile  aver  appel'  ceo   un   fait,   come 
adire,  fisi   un    f.iit   <l  Et 

Choke    dit,  <]   c   ne  p  ar    il 

■    dit    un  fait,  -inon  ']  1111    1 
cest  ust  <         fait,  p  q  Litt.  1  1 

ceo,  et  dit  que  il  oerr  a]  u  writing, 


ct  le  appel'  un  escri|  I  ;ne  <[  ticl 

home  enfeoffe  tiel  home." 

(.')   "  I'  .ii  ilioris     probal  msa 

.1  confii  iuntur  in  I  1.     Quo 

bulo  quamvis  omnia,  quibu  -  1  ausa 

instruitur,  ad  ten- 

tur :     hie    tam<  n    instrumentum 

sen;  i     1    1     hi     ■■    1. 11  inn    m<  mo- 

n. un  ihiini'i  ta,     Quia  autem 

\.    1      pill..  Ml. I, 

vel  privata  :  him  itum  eit 

v  I   publii  uin.  vel  pi ivatum.      I'  'i"c 
publii  a    habentur    in 
■ 
tabula:  1  ■ 
in  monimenta  public  •■ 
mats  I  >i\"   pub 

depromptte,  &c."     1 1 

;     IJ7.      Sec 
1  anon.    lib.    3,    tit.  9 


4o6  INSTRUMENTS    OF    EVIDENCE. 

is  not  usually  applied  to  public  writings.  It  is  not, 
however,  essential  to  an  instrument  that  it  be  the  act 
of  two  or  more  parties;  it  may  be  unilateral  as  well 
as  synallagmatic.  Thus,  a  deed  poll,  or  a  will  is  an 
"instrument,"  as  much  as  the  most  complicated 
indenture  consisting  of  any  conceivable  number  of 
parts,  (w) 

2 1 8.  "  Writings"  understood  in  this  sense  are  of 
two  kinds,  "  Public"  and  "  Private."  (ji)  Under  the 
former  come  acts  of  parliament,  judgments  and  acts  of 
courts,  both  of  voluntary  and  contentious  jurisdiction, 
proclamations,  public  books,  and  the  like.  They  are 
divided  into  "Judicial"  and  "  Not  Judicial;"  and  also 
into  "  Writings  of  record"  and  "  Writings  not  of  rec- 
ord." (0)  Records,  says  Lord  Chief  Baron  Gilbert, 
"  are  the  memorials  of  the  legislature,  and  of  the 
king's  courts  of  justice,  and  are  authentic  beyond  all 
manner  of  contradiction ;"  (p)  they  are  said  to  be 
"  monumenta  veritatis,  ct  vetustatis  vestigia,"  (g)  as 
also  "  the  treasure  of  the  king."  (r)  But  the  judgments 
of  tribunals,  are  not  in  general  receivable  in  evidence 
ainst  those  who  were  neither  party  nor  privy  to 
them  ;  although,  in  some  instances,  the  law,  from  mo- 
tives of  policy,  renders  them  conclusive  and  binding 
on  all  the  world,  as  in  the   case, of  judgments  in  rem. 

(ni(  "  Nee   minus  ex    hi-,  definition-  rum."       Ileinec.    ad     Pand.    pars    4, 

<bu^    intelligitur,     instruments     pri-  §  128. 

— 1.  Chirographa,  («)  Supra,   note  (1);    2   Ph.   Ev.  I, 

qu;>                               1     UOvoit\evpcp}  10th  ed. 

iir.      2.    Syngraphas,   super  2  Ph.  Ev.  1,  ioih  ed. 

ti  niTtAf'              riptas.     3.  Apo-  ( /)  Gilb.  Ev.  7,  4th  ed.     See  also 

chas.    quibus    sibi    solutum    fatentur  Plowd.  491;  Co.    Litt.    260  a;  4  Co. 

ere                \.  Antapochas(Rever  ales;,  71  a  ;  Finch,  Law,  231  ;  1   East,  355  ; 

quibu^  debitor  se  solvisse,  et  ad  banc  2  B.  &  Ad.  367. 

lem  "iMrictum  esse  fatetur.  1  Co.    Litt.  uSa-   20,3  b.     See  a 

6.  Libra    rationum,  et  7.  Rol.  296. 

Quascumoue  alias  scripturas  privato-  (;)   11  Edw.  IV.  I, 


DOCUMENTS.  407 

(s)  Among  public  documents  of  a  judicial  nature 
but  not  of  record,  may  be  mentioned  various  forms  of 
inquisitions,  depositions,  examinations,  writs,  pleadings 
&c;  and  among  those  of  a  public  nature  not  judicial 
the  journals  of  the  Houses  of  Parliament,  the  books 
of  the  bank  of  England,  registers  of  births,  marriages, 
and  deaths,  corporation  books,  books  of  heralds'  visita- 
tions, books  of  deans  and  chapters,  &c. 

219.  The  principle  of  the  admissibility  of  public 
writings  in  general,  is  thus  clearly  explained  in  a  text 
work  :  "  Documents  of  a  public  nature,  and  of  public 
authority,  are  generally  admissible  in  evidence,  al- 
though their  authenticity  be  not  confirmed  by  the 
usual  and  ordinary  tests  of  truth,  the  obligation  of  an 
oath,  and  the  power  of  cross-examining  the  parties  on 
whose  authority  the  truth  of  the  document  depends. 
The  extraordinary  degree  of  confidence  thus  reposed 
in  such  documents,  is  founded  principally  upon  the 
circumstance,  that  they  have  been  made  by  authorized 
and  accredited  agents  appointed  for  the  purpose,  and 
also  partly  on  the  publicity  of  the  subject-matter  to 
which  they  relate,  and  in  some  instances  upon  their 
antiquity.  Where  particular  facts  an-  inquired  into, 
and  recorded  for  the  benefit  of  the  public,  those  who 
are  empowered  to  act  in  making  such  investigations 
and  memorials,  are  in  fact  the  ag<  nts  <>f  ;iil  the  indi- 
viduals who  compose  the  public;  and  every  membe1 
of  the  community  may  be  supposed  to  be  pi  ivy  t<>  the 
investigation.  On  the  ground,  therefore,  of  the  credit 
due  to  th<-  agents  so  empowered,  and  of  the  public 
nature  of  t  he  fad  s  th<  m  elv<  .  uch  document!  an 
(  ntitled  to  an  extraordinary  degree  of  confidence,  and 
it  is  nut  requisite  that  they  should  be  confirmed  and 
sanctioned  by  the  ordinal  of  truth  ;   in  addition 

(s)  Infra,  bk.  3,  pt.  2,  i  li   >>■ 


4o3  INSTRUMENTS    OF    EVIDENCE. 

to  this,  it  would  not  only  be  difficult,  but  often  utterly 
impossible,  to  prove  tacts  of  a  public  nature  by  means 
of  actual   witnesses   examined  upon   oath."  (7)1     This 

(/)  Stark.  Evid.  272-3,  4th  ed.     Sec  Pand.  pars  4,  §§   127   apd   129;  and 

Ace.   Merrick   v.  Wakley,  8  A.  &   E.  Devotus,    Inst.    Canon,    lib,  3,  tit.  9 

170;   Doe  </.   Fiance   v.  Andrews,  I Sr.  §  2C- 
Q.    B.   759,  per  Kile.  J.;  Heinec.  ad 

1  It  is  the  duty  of  courts  to  know,  judicially,  the  general 
course  of  human  transactions,  and  of  the  ordinary  meaning 
and  nature  of  tilings  (Boullemet  v.  State,  28  Ala.  83).  Of  the 
signification  of  abbreviations,  such  as  "  admr  "  for  adminis- 
trator (Moseley  v.  Martin,  37  Ala.  216).  And  see  an  inter- 
esting statement  as  to  what  courts  are  presumed  to  know,  in 
Morgan's  Law  of  Literature,  vol.  1,  p.  172;  Weaver  v.  Mc- 
Ethenon,  13  Mo.  89;  Stephen  v.  State,  1 1  Ga.  225  ;  Ellis  v. 
Park,  8  Tex.  205  ;  Russel  v.  Martin,  15  Tex.  238;  Lougher  v. 
Kennedy,  2  Bibb.  (Ky.)  607;  Lampton  v.  Haggard,  3  T.  B. 
Mon.  149;  Jones  v.  Overstreet,  4  Id.  547;  Bell  v.  Barnett,  2 
J.  J.  Marsh.  516;  Seymour  v.  Marvin,  11  Barb.  80;  Kermott 
v.  Ayer,  11  Mich.  181.  Courts  judicially  know  whatever 
ought  to  be  generally  known  within  their  jurisdiction,  as,  for 
example,  the  peculiar  nature  of  lotteries  and  the  mode  in 
which  they  are  generally  carried  on  (Boullemet  v.  State,  28 
Ala.  83).  The  regular  course  of  nature,  in  regard  to  the 
revolution  of  the  seasons,  and  in  relation  to  vegetables  and 
animals  (Patterson  v.  McCausland,  3  Bland  (Md.)  69).  Of  facts 
of  unvarying  occurrence,  but  not  of  the  vicissitudes  of  climate 
or  the  seasons  (Dixon  v.  Nichols,  39  111.  372).  Where  it  is 
evident  from  the  time  of  their  ancestor's  death  that  his  children 
arrived  at  full  age  before  suit  commenced,  the  court  will  take 
notice  of  the  fact  judicially  (Floyd  v.  Johnson,  2  Litt.  (Ky.) 
109;  Floyd  v.  Ricks.  14  Ark.  280).  But  not  of  what  are  the 
usual  commissions  on  acceptances  (Seymour  v.  Marvin,  11 
Barb.  (N.  Y.)  80).  The  value  of  Canada  currency,  and  the 
rate  of  Canadian  interest  are  not  judicially  known  by  courts 
within  tin:  United  States  (Kermott  v.  Ayer.  11  Mich.  181; 
but  see  Lampton  v.  Haggard,  3  T.  B.  Mon.  149;  Jones  v. 
Overstreet,  4  Id.  547).  Courts  will  take  judicial  notice  of 
prominent  geographical  facts  and  features  of  the  country 
(Mossman  v.  Forrest,  27  Id.  233).  Of  the  commercial  usuage 
to    observe    !  rid    festivals,  without  proof  on   tin;  subject 

(Sasscer  v.  Farmer's  Bank,  4  Md.  409).  Courts  cannot  ju- 
dicially say  that  the  concentric  layers  in  the  trunk  of  a  tree 
mark   each  a  year's  growth  of  the  tree,  and  thus  indicate  its 


DOC  UMENTS.  409 

must  not  be  understood  to  mean,  that  the  contents  of 

public  writings  are   admissible  in  evidence  for  every 

purpose  : — each  public  document  is  only  receivable  in 

age  by  the  number  of  concentric  layers,  though,  if  the  fact 
were  proved  that  the  number  of  layers  in  a  tree  marks  the 
number  of  years  of  the  age  of  the  tree,  and  that  trees  increase 
by  an  annual  addition  of  one  such  layer,  then  the  age  of 
other  similar  trees  might  be  proved  in  the  same  way  (Pat- 
terson v.  McCausland,  3  Bland  (Md.)  69).  Courts  will  take 
judicial  notice  of  historical  facts  (Payne  v.  Treadwell,  16  Cal. 
220;  Ferdinand  v.  State,  29  Ala.  706).  But  on  April  10.  1861, 
the  supreme  court  of  Texas  could  not  take  judicial  notice, 
from  a  newspaper  report,  that  Fort  Sumpter  had  been  fired  on 
— that  a  civil  war  existed  between  two  portions  of  the  United 
States  (Bishop  v.  Jones,  28  Tex.  294).  The  judicial  notice 
has  been  held  to  extend  to  the  situation  of  a  town  in  a  foreign 
country,  and  to  the  fact  of  a  bar  at  the  mouth  of  a  river  which 
>.-k  of  a  certain  draft  cannot  cross  (The  Peterhoff,  Blatchf. 
Prize  Cas.  463).  To  the  navigability  of  streams  (Neader- 
houser  v.  State,  28  Ind.  257).  To  the  geographical  position  of 
towns  in  a  county  (Indianapolis,  &c.  P.  R.  Co.  v.  Stephens, 
28  Ind.  (.29;  State  v.  Too  le,  2  llarr.  (Del.)  541  ;  bill  see  Rich- 
ardson v.  Williams,  2  Port.  (Ala.)  339).  To  the  govern menl 
surveys  and  legal  subdivisions  of  the  public  lands  (Atwater  v. 
Schenck,  9  Wis.  160;  Hill  v.  Bacon,  43  111  .177;  Mossman  v. 
Forrest,  27  Ind.  238;  Prieger  v.  Exchange,  &c.  Ins.  Co.,  <> 
Wis.  89.  To  the  area  of  a  county  (Board  of  ( lommissioncrs,  &c, 
v  Spitler,  1;  Ind.  255;  Buckinghouse  v.  Gregg,  19  Ind.  101  ; 
Wrighi  v.  Hawk  Tex.  452;  but  see  Whitney  v.  Gauche, 
11  La.  A  mi.  1  j  •  ;  ( . 1  \  iii  v.  Applelon,  22  Mc  r, ;  ;  Hard- 
ing   V.    Strong,    [2    111.    148;    Cash    v.    Auditor   of  (dark    1    0  .   : 

Ind   227;  Gilbert  v.  Molnie,  &c    Co.,  19  loua,  319;  Thon 
v.   Sti  :  Goodwin    v.  Appl'eton,   •■    Me.   1    ;.  State   \. 

Powe  I  onn.   1    .   I '  igg  in  1    I    illier,  6  Mo.  568;  Whitlock 

v.    Castro,    22    Tex.     108;     Woodward    v.     <  hicago,    &<     R 
R.    Co.,    2i    Wis.    309;     People    v.    Robinson,    1  ;'•'■,: 

[ndianapoli  s,  &      R    R    Co    v,  '  )a  e,   1 5   Ind.  r- ;  Edivn 
Davis,  1   I'       [21 ;  City  Council  of  Montgomery  v.  M.  &    W 
Plank    Road  '  ■•  .  ;i    Ala.   76 :   Pri<  e  v.    P  Mo    6       I  a 

Grange  v.  Chapman,  11  Mich  mo;  lohnson  v.  Common 
<  ouncil,  16  Ind.  227 ;  Wrighi  v.  Philli|  G  eene  (Iowa)  191; 
Stanberry  v.  Nelson,  Wi  i  »hio)  766  ;  M  irtin  v,  Martin, 

Mi  Vanderwerker  v.  Pe  »ple,  5  Wend.  (N    Y.)  '  ity 

(  ouncil,  &<  .  v.  Plank  Road  '  lo  .  ;i  Ala.  7'.  ;  Pedi  I  ren 


4io  INSTRUMENTS    OF    EVIDENCE. 

proof  of  those  matters,  the  remembrance  of  which  it 

was  called  into  existence  to  perpetuate.     Some  public 

writings  are  like  records — conclusive  on  all  the  world; 

i<>n  &c.  Co.,  2<)  N.  J.  L.  (5  Dutch.)  367  ;  Carron  v.  Washington 
loll  Bridge  Co.,  Phill.  (N.  C.)  L.  118;  Drake  v.  Flewellen,  32 
Ala.  100;  Danville,  &c.  Co.  v.  State,  16  Ind.  456;  Illi- 
nois, &c.  R.  R.  Co.  v.  Johnson,  40  111.  33;  Burdini  v. 
Grand    Lodge  of  Alabama,  37   Ala.  47S  ;   1   Ala.  Select  Cases, 

3S5. 

The  courts  of  the  United  States  do  not  take  judicial  notice 
of  alien  laws.  One  asserting  such  a  law  must  allege  and  prove 
the  law  as  matter  of  fact  (Hooper  v.  Moore,  5  Jones  (N.  C.)  L. 
130;  Peck  v.  Ilibbard,  26  Vt.  698;  Woodrow  v.  O'Connor,  28 
\'t.  770;  Bean  v.  Briggs,  4  Iowa,  464  ;  Cheemasero  v.  Gilbert, 
24  111.  293  ;  Syme  v.  Stewart,  17  La.  Ann.  73  ;  Pecquet  v.  Pec- 
quet, Id.  204;  Frith  v.  Sprague,  14  Mass.  455;  Palfrey  v.  Port- 
laud.  &c  R.  R.  Co.,  4  Allen  (Mass.)  55  ;  Baptiste  v.  De  Volun- 
brun,  5  liar.  &  J.  (Md.)  86;  Chouteau  v.  Pierre,  9  Mo.  3; 
Ocean  Ins.  Co.  v.  Field,  2  Story,  63;  Doe  v.  Lnslava,  11  Ala. 
1028;  United  States  v.  Turner,  n  How.  663;  Same  v.  Phila- 
delphia &  New  Orleans,  Id.  654;  Choteau  v.  Pierre,  9  Mo  3; 
Olt  v.  Soulard,  9  Mo.  581  ;  Jewell  v.  Centre,  25  Ala.  495  ; 
Bradford  v.  Cooper,  1  La.  Ann.  325;  Owen  v.  Boyle,  15  Me. 
147 ;  Campion  v.  Kille,  15  N.  J.  Eq.  (2  McCart.)  476;  Cooke  v. 
Crawford,  1  Tex.  9;  Ludlow  v.  Van  Rensaellaer,  1  Johns.  94). 
As  to  judicial  cognizance  of  the  laws  of  other  states,  pri- 
vate laws,  &c  ,  see  Taylor  v.  Runyan,  9  Iowa,  522;  Drake  v. 
Glover,  30  Ala.  382;  Billingsley  v.  Dean,  11  Ind.  331;  Ander- 
son v.  Anderson,  23  Tex.  639;  Faulk  v.  Faulk,  Id.  653  ;  Carey 
v.  Cincinnati,  &c.  R.  R.  Co.,  5  Iowa,  357  ;  Brimhall  v.  Van 
Campen,  8  Minn.  13;  Whitesides  v.  Poole,  9  Rich.  (S.  C.)  68; 
Taylor  v.  Boardman.  25  Vt.  581  ;  Holman  v.  Collins,  1  Ind. 
24;  Joins  v.  Laney,  2  Tex.  342;  Newton  v.  Cocke,  10  Ark. 
16'; ;  Territt  v.  Woodruff,  19  Vt.  182  ;  Miller  v.  Avery,  2  Barb. 
(X.  V.)  Ch.  582  ;  Anderson  v.  Folger,  11  La.  Ann.  289;  Beau- 
champ  v.  Ludd,  Hard.  (Ky.)  163;  Hosford  v.  Nichols,  1  Paige 
(N.  V.)  220;  Irwin  v.  McLean,  4  Blackf.  (Ind.)  52;  Cook  v. 
Wilson,  Litt.  (Ky.)  Sel.  Cas.  437  ;  Mason  v.  Wash,  r  111. 
(Breese)    16;  Ripple  v.  Ripple,  1  Rawle  (Pa.)   386;  Stephen- 

1  v.  Bannister,  3  Bibb.  (Ky.)  363;  Davis  v.  Curry,  2  Id.  238; 
Si  ns  v.  Southern  Ex.  Co.,  38  Ga.  129;  Iloyt  v.  McNeil,  13 
Minn.  390;  Rape  v.  Ileaton,  9  Wis.  328;  Hawthorne  v.  Hobo- 
ken,  32  N.J.  L.  172;  Levy  v.  State,  6  Ind.  281;  Bevens  v. 
Baxter,  23  Ark.  387  ;  Carson  v.  Smith,  5  Minn.  78  ;  Hammond 


DOCUMENTS.  41 1 

but  this  is  not  their  general    character  ;  as,  most  usu- 
ally, they  only  hold  good  until  disproved. 

220.  Among  private  writings,  the  first  and  most 

v.  Inloes,  4  Md.  138;  Griswold  v.  Gallop,  22  Conn.  20S ;  Lin- 
coln v.  Ballette,  4  Wend.  475  ;  State  v.  Jarrett,  17  Md.  309; 
State  v.  O'Connor,  13  La.  Ann.  486;  Canal  Co.  v.  R.  R.  Co., 
4  Gill  &  J.  (Md.)  1  ;  State  v.  Bailey,  16  Ind.  46;  Bertiner  v. 
Waterloo,  14  Wis.  37S;  State  v.  Edwards,  19  Mo.  674;  Cash 
v.  State,  10  Humph.  11 1  ;  Brucker  v.  State,  19  Wis.  539;  State 
V.  Minnick,  15  Iowa,  123;  Taylor  v.  Rennie,  35  Barb.  272; 
York,  &c.  R.  R.  Co.  v.  Winans,  17  How.  (U.  S.)  30;  Hizer  v. 
Stale,  12  Ind.  330;  State  v.  Williams,  5  Wis.  308;  Beach  v. 
Workman,  20  N.  II.  379;  Norell  v.  McHenry,  1  Mich.  227; 
Pearson  v.  Barrington,  32  Ala.  227;  Shropshire  v.  State,  12 
Ark.  190;  Thompson  v.  Haskell,  21  111.  215;  Alexander  v. 
Burnham,  18  Wis.  199;  Ingraham  v.  State,  27  Ala.  17;  Rag- 
lan v.  Wynn,  37  Ala.  32  :  1  Ala.  Select  Cases,  270;  Laud  v. 
Patteson,  Minor  (Ala.)  14;  State  Bank  v.  Curran,  10  Ark. 
142  ;  Ward  v.  Henry,  19  Wis.  76;  Broughton  v.  Blackman,  1 
X.  Chip.  (Vt.)  109;  Dyer  v.  Flint,  21  111.  80;  Fancher  \.  De 
Montegro,  1  Head  (Tenn.)4o;  Scott  v.  Jackson,  u  1  a.  Ann. 
640:  Wetherbee  v.  Dunn,  32  Cal.  106 ;  Templeton  v.  Morgan, 
[6  La.  Ann.  438;  Burnett  v.  Henderson,  21  Tex.  588;  Fellows 
v.  Menasha,  11  Wis.  558;  Danville,  &c.  Co.  v.  State,  16 
Ind.  456;  Russel  v.  Branahan,  8  Blackf.  277  ;  Laufeac 
v.  Me  tier,  1  I  La.  Ann.  497;  Taylor  v.  Graham,  Id.  6 
New  Orleans  Canal  Co.  v.  Templeton,  20  Id.  141;  Chap- 
man v.  Harrold,  55  Pa.  St.  to6;  Durham  v.  Danii  Greene, 
(Iowa)  ;i8;  State  v.  McAllister,     1    Me,  1  19;  Jones  v.  Fales, 

4  Mi  ..'is;  State  v.  Snowdon,  i  Brew;  (Pa  McKinne) 
v.  ( )  (  onnor,  26  I  ex.  5  ;  Jai  vis  v.  Robinson,  21  Wi- 
Lindsay  v.  Williams,  17  Ala.  j;<>\  State  v,  Hammett,  7  Ark. 
492;  Morgan  v.  State,  12  Ind.  448;  Gilland  v.  Sellei  .  r  Ohio 
St.  223  ;  Pugh  v.  State,  2  I  lead,  1  I  enn.)  227  ;  B  house 
v.  G  .  19  Ind.  401;  Williams  v.  Hubbard,  1  Mich.  446; 
Baki  1  1  Mygatt,  1  1  Iowa,  131;  State  \  Postlewait,  Id,  1 
State  v.  Schilling,  Id.  455;    March   v.  Commonwealth,  ta   B 

M..n.  (  Ky.)  25  ;    Minoi    v.  Si ■.  1    I  a     Ann  v 

Curti  .    1  j    Id.   451  ;    Ma  itei    »n    v.    Le  I  laire,    1    Minn.    1 
Dozier  v    fo  Port.   (Ala  1  I  u<  kei   v   State,  1  1  Nld 

,    l  -..,,.    Pattei  on,    ;  ;    Ala     ,  ;  ;    Kil]  atri<  k   \     1 
wealth,  .-,i    Pa.   St.    198;  O  Qt<  1   (    Pratt,  9  Md   <  ;     I  "■  rr)  i 
Laker,   17   Id.  75 ;  Scotl   v    Scott,  Id        ;  Chambers  v.  People, 

5  III.   (4  S  am.)    1  , 1  ;    I  Graham   \ .   Andei  »on,    \2  IU      u, 


4i2  INSTRUMENTS    OF    EVIDENCE. 

important  are  those  which  come  under  the  description 
of  "deeds,"  i.e.  "writings  sealed  and  delivered."  (u) 
And  they  differ  from  inferior  written  instruments  in 
this  important  particular,  viz.,  that  they  are  presumed 
to  have  been  made  on  good  consideration  ;  and  this 
presumption  cannot  be  rebutted,  (x)  unless  the  in- 
strument is  impeached  for  fraud;  (y)  whereas  in 
contracts  not  under  seal  a  consideration  must  be  al- 
leged and  proved.  (Y)  x  In  former  ages  deeds  were 
rarely  signed,  and  the  essence  of  that  kind  of  instru- 
ment consisted,  and  indeed  consists  still,  in  the  sealing 
and  delivery. 

"  Re,  verbis,  scripto,  consensu,  traditione, 
Junctura,  vestes  sumere  pacta  soleut," 

has  been  the  rule  from  the  earliest  times,  (a)  "  No 
deed,  charter,  or  writing,  can  have  the  force  of  a  deed 

(u)  2  Blackst.  Comm.  295  ;  Co.  Litt.  (y)  Id. 

171  b  ;   Finch,  L.  108.  (s)   Rami  v.  Hughes,  7  T.  R.  350(11). 

(x)  Plowd.  309;    3  Stark.  Ev.  930,  (a)  Bracton,   lib.   2,  c.   5,  fol.  16  b  ; 

3rd  ed. ;  Id.  747,  4th  ed.  Plowd.  161  b  ;  Co.  Litt.  36  a. 

Sobry  v.  De  Laistre,  2  Har.  &  J.  (Md.)  191  ;  Manaun  v.  Web- 
ster, 7  Gill  (Md.)  78;  McGinnis  v.  State,  24  Ind.  500;  Buford 
v.  Hickman,  1  Ilempst.  232;  Alderson  v.  Bell,  9  Cal.  315  ; 
Lake  Merced  Water  Co.  v.  Cowles,  31  Cal.  215;  Vassault  v. 
Seitz,  31  Cal.  225;  People  v.  De  La  Guerra,  24  Id.  73; 
^  aimes  v.  Major.  21  Ind.  443;  Clark  v.  Pratt,  20  Ala.  470; 
Mobile,  &c.  R.  R.  v.  Whitney,  39  Ala.  468  ;  Herschfeld  v. 
Devel,  12  Ga.  582;  Butcher  v.  Brownsville,  2  Kan.  70; 
Nemnio  v.  Davis,  7  Tex.  26;  Allegheny  v.  Nelson,  25  Pa.  St. 
332;  Legrand  v.  Sidney  College,  5  Munf.  (Va.)  324;  Collier 
v.  Baptist  Soc,  8  B.  Mon.  (Ky.)  68;  Somerville  v.  Winbish, 
7  Graft.  (Va.)  205;  Grob  v.  Cushman,  45  111.  119;  Coleman 
v.  Dobbins,  8  Ind.  156;  Judah  v.  IVustees,  16  Ind.  56;  People 
v.  Mahaney,  13  Mich.  481;  Hensley  v.  Tarpey,  7  Cal.  288; 
Palmer  v.  Aldridge,  16  Barb.  (N.  V.)  131  ;  Papin  v.  Ryan,  32 
Mo.  21;  Flanigen  v.  Washington  Ins.  Co.,  7  Pa.  St.  306; 
Graves  v.  Keaton,  3  Cold.  (Tenn.)  8;  Wright  v.  Hawkins,  28 
Tex.  452;   Baylys  v.  Chubb,  16  Gratt.  (Va.)  284. 

1  See  Morgan's  Addison   on   Contracts,  vol.  1,  p.  18,  et  seq 
and  cases  cited. 


DOCUMENTS.  413 

without  a  seal ;"  (6)  and  "  traditio  loqui  facit  chartam." 
(7)  Deeds  are  usually  attested  by  witnesses  ;  who 
subscribe  their  names,  to  signify  that  the  deed  has 
been  executed  in  their  presence.  (V)  Ancientlv 
the  number  of  witnesses  was  greater  than  at  the 
present  day  ;  and  when  the  execution  of  a  deed  was 
put  in  issue,  process  was  issued  against  the  witnesses 
whose  names  appeared  on  the  instrument,  who,  on 
their  appearance  in  court,  seem  to  have  discharged  in 
some  respects  the  functions  of  a  jury,  (e)  If  they 
were  all  dead  it  was  tried  by  a  jury — "  Super  fidem 
chartarum,  mortuis,  testibus,  erit  ad  patriam  dc 
necessitate  recurrendum."  (_/")  In  modern  prac- 
tice the  rule  was,  that  the  execution  of  a  deed  must 
be  proved  by  the  testimony  of  at  least  one  of  the 
attesting  witnesses,  (g)  If  they  were  all  dead,  or  in- 
sane, or  out  of  the  jurisdiction  of  the  court,  or  could 
not  be  found  on  diligent  inquiry,  proof  might  be 
given  of  their  handwriting;  ( h )  but  the  testimony  of 
third  panics,  even  though  they  might  have  been 
present  at  the  exec  anion  of  the  instrument,  was  nol 
receivable  to  prove  it.  They  might,  however,  be 
received  to  contradict  the  testimony  of  the  subscri- 
bing witnesses;  (7)  although  formerly  thi^  was 
doubted.  (/£)  And  so  far  was  this  principle  carried, 
that  even  proof  of  an  admission  by  a  party,  ol  the 
execution    of  a   deed,  would  not  in  general   dispense 

I  l  2  Phi  I    1 

(c)  5  Co.    1  a  ;    I. "in,    N'  ,x.    159, 
188.  I      B  Toon,    Hi  ' 

(V)    2    I  07.  II" 

■  s  ;  Co.       '  ' 

6  h 
(/)  Co.  I.itt.  6  b.  1  I 

(g)  Infra,  bk.  4.  pt.  2,  ch.  7.  .  >'■  •  in  Whjrauo  t 

{h)  See  the   cases  collected,  Stark.      Garth,  -  Eicb   S03. 


4i4  INSTRUMENTS    OF    EVIDENCE. 

with  proof  by  the  attesting  witness.  (/)  But  it  was 
not  necessary  to  call  the  attesting  witness,  or  indeed 
to  give  any  other  proof  of  a  deed  thirty  years 
old  or  upwards,  and  corning  from  an  unsuspected 
repositary  ;  (m)  unless  perhaps  when  there  was  an 
erasure  or  other  blemish  in  some    material    part    of 

it.  («)■ 

221.  Instruments  not  under  seal  are  sometimes 
attested  by  witnesses;  and  in  such  cases  it  was  held 
that  the  attesting  witness  must  be  called,  or  his  hand- 

(/)  Infra,  bk.  3,  pt.  2,  ch.  7.  («)  Id.  247. 

(w)  2  Phill.  Ev.  245-6,  10th  ed. 

1  Knapp  v.  Altoneyer,  38  N.  Y.  Superior  Ct.  (J.  &  S.)  i6t, 
and  Shanks  v.  Lancaster, 5  Gratt  (Va.)  no;  Green  v.  Chelsea, 
24  Pick.  (Mass.)  7  r  ;  Jackson  v.  Blanshavv,  3  Johns.  (N.  Y.) 
292;  Troup  v.  Hurlbut,  10  Barb.  (N.  Y.)  354;  Clark  v.  Wood, 
34  N.  II.  447  ;  Zeigler  v.  Houtz,  1  Watts  &  S.  (Pa.)  533;  Dun- 
can v.  Beard,  2  Nott  &  M.  (S.  C.)  40°;  Stockbridge  v.  West 
Stockbridge,  14  Mass.  257;  Winston  v.  Guathmey,  8  B.  Mon. 
(Ky.)  19;  Crane  v.  Marshall,  16  Me.  27;  Hall  v.  Gittinas,  2 
Har.  &  J.  (Md.)  380;  Jackson  v.  Davis,  5  Cowan.  123;  Nixon 
v.  Porter,  34  Miss.  697  ;  Fairly  v.  Fairly,  38  Miss.  280;  Rid 
ley  v.  Johnson,  n  Barb.  (N.  Y.)  527;  Homer  v.  Ciller,  14 
N.  H.  85  ;  Bank  of  Middlebury  v.  Rutland,  33  Vt.  414;  Disha- 
ger  v.  Maitland,  12  Leigh  (Va.)  524;  Williams  v  HiUegas,  5 
Pa.  St.  492  ;  Middleton  v.  Mass,  2  Nott  &  M.  (S.  C.)  55  ;  Smith 
v.Rankin,  20  111.  14;  Jackson  v.  Brooks,  8  Wend.  426 ;  Wil- 
son v.  Betts,  4  Denio,  201 ;  Dobson  v.  Finley,  8  Jones  (N.  C.) 
495;  Swygart  v.  Taylor,  1  Rich.  (S.  C.)  54;  Stump  v.  Hughes, 
5  Hayw.  93;  M'Cormick  v.  M'Murtrie,  4  Watts  (Pa)  M)2\ 
Bellas  v.  Levan,  Id.  294;  M'Call  v.  Sybert,  Id.  431;  Goddard 
v.  Glolinger,  5  Id.  209;  Urket  v.  Coryell,  5  Watts  &  S.  (Pa.) 
60;  James  v.  Salsler,  8  Watts  &  S.  192;  Pitts  v.  Temple,  2 
Mass.  538;   Carter  v.  Chaudron,  21  Ala.  72  ;    Beall  v.  Dean 

7  Ala.  124;  Doe  v.  Eslava,  11  Ala.  1028;  Doe  v.  Roc,  31  Ga. 
593;  Hedger  v.  Ward,  15  B.  Mon.  (Ky.)  106;  Reaume  v.  Cham- 
bers, 22  Mo.  36;  Jackson  v.  Davis,  5  Cow.  (N.  Y.)  123;  Haw- 
ley  v.  Bennett,  5  Paige  (N.  Y.)  104;  Clark  v.  Owens.  i.S  N.  V. 
434;  Archibald  v.  Davis,  4  Jones  (N.  C.)  L.  133;  McReynolds 
v.  Longenberger,  57  Pa.  St.  13;  Parris  v.  Ewbanks,  1  Spears 
(S.  C.)  83;  Robinson  v.  Gilman,  3  Vt.  163;    Dobson  v.  Finley, 

8  Jonck  (N.  C.)  L.  495  ;   Fairly  v.  Fairly,  28  Id.  280. 


DOCUMENTS.  415 

writing  proved,  as  in  the  case  of  a  deed.  (0)  But 
since  the  Common- Law  Procedure  Act,  17  &  1  S  Vict 
c.  125,  s.  26,  and  the  28  Vict.  c.  18,  ss.  i,  7,  it  is  not 
necessary,  either  in  civil  or  criminal  proceedings,  to 
prove  by  the  attesting  witness,  any  instrument  to  the 
validity  of  which  attestation  is  not  requisite ;  and 
such  instrument  maybe  proved  by  admission  or  other- 
wise, as  if  there  had  been  no  attesting  witness  thereto. 
And  so,  by  the  Merchant  Shipping  Act,  17  <Sl  iS 
Vict.  c.  104,  s.  526,  any  document  required  by  that 
act  to  be  executed  in  the  presence  of.or.to  be  attested 
by,  any  witness  or  witnesses,  may  be  proved  by  the 
evidence  of  any  person  who  is  able  to  bear  witness  to 
the  requisite  facts,  without  calling  the  attesting  wit- 
ness or  witnesses,  or  any  of  them.  Where  there  is 
no  attesting  witness  the  usual  proof  is  by  the  hand- 
writing of  the  party.  The  proof  of  handwriting  is 
so  important  and  peculiar  that  it  will  be  considered 
separately.  (/) 

222.  Next  as  to  wills.  By  the  statute  of  frauds, 
29  Car.  2,  c.  3,  s.  5,  it  was  enacted,  thai  all  devises 
and  bequests  of  lands  or  tenements  to  be  valid,  should 
be  in  writing  and  signed  by  the  party, oi  by  some  other 
per  "ii  in  his  presence  and  by  hi  i  express  directions, 
aud  1"  atl  sted  and  subscribed  in  his  presence  by  at 
lea  t  three  credible  witne  es.  Wills  "I  personalit) 
r<  mai  I  al  1  he  common  law,  and  did  not  r<  quire 
any  witness.  But  by  the  Will  Act,  7  Will.  1  *\  1 
Vict.  c.  26,  this  pari  of  the  tatute  ol  frauds  is 
repealed  ;  and  ii  is  enacted  by  ect.  9,  thai  'No  will 
shall  be  valid  unless  ii  shall  be  in  writing  and  ex- 
ecuted   in   manner  hereinafter  mentioned  (thai    is  to 

/      (0)  Earl  r.f  Falmouth  v.  '■  9     3  M  "•  a 

M.  &  W.  469  ,  Stn  ■  ■  ■  •    1    !•:•■•■.  5      St. uk.  1 

C.  B.  562  ,  \  >■■<:,/.  Syk(  rnford,  !■•  2. 


416  INSTRUMENTS    OF    EVIDENCE, 

say)  ;  it  shall  be  signed  at  the  foot  or  end  thereof  by 
the  testator,  or  by  some  other  person  in  his  presence 
and  by  his  direction  ;  and  such  signature  shall  be  made 
or  acknowledged  by  the  testator  in  the  presence  of  two 
or  mure  witnesses  present  at  the  same  time,  and  such 
witnesses  shall  attest  and  shall  subscribe  the  will  in  the 
presence  of  the  testator,  but  no  form  of  attestation 
shall  be  necessary."  In  carrying  out  the  provisions  of 
this  enactment,  many  wills,  just  and  regular  in  all 
other  respects,  were  rendered  inoperative  for  inad- 
vertent non-compliance  with  the  forms  which  it  pre- 
scribed. To  remedy  this  was  passed  the  15  &  16  Vict, 
c.  24,  s.  1,  which,  after  reciting  sect.  9  of  the  previous 
act,  enacts,  that  "  Every  will  shall,  so  far  only  as  re- 
gards the  position  of  the  signature  of  the  testator,  or 
of  the  person  signing  for  him  as  aforesaid,  be  deemed 
to  be  valid  within  the  said  enactment,  as  explained  by 
this  act,  if  the  signature  shall  be  so  placed  at  or  after, 
or  following,  or  under,  or  beside,  or  opposite  to  the 
end  of  the  will,  that  it  shall  be  apparent  on  the  face 
of  the  will,  that  the  testator  intended  to  give  effect  by 
such  his  signature  to  the  writing  signed  as  his  will  ; 
and  that  no  such  will  shall  be  affected  by  the  circum- 
stance, that  the  signature  shall  not  follow  or  be  im- 
mediately after  the  foot  or  end  (y)  of  the  will,  or  by 
the  circumstance  that  a  blank  space  shall  intervene  be- 
tween the  concluding  word  of  the  will  and  the  sign- 
ature, or  by  the  circumstance  that  the  signature  shall 
be  placed  among  the  words  of  the  testimonium  clause 
or  of  the  clause  of  attestation,  or  shall  follow  or  be 
after  or  under  the  clause  of  attestation,  cither  with  or 
without  a  blank  space  intervening,  or  shall  follow7  or 
be  after,  or  under,  or  beside  the  names  or  one  of  the 
names  of  the  subscribing  witnesses,  or  by  the  circum- 

(g)  Qu.,   Ilur.t  v.  Hunt,  L.  Rep.,  i  P.  &  D.  209. 


DOCUMEXTS. 


417 


stance  that  the  signature  shall  be  on  a  side  or  page,  or 
other  portion  of  the  paper  or  papers  containing  the 
will,  whereon  no  clause  or  paragraph  or  disposing  part 
of  the  will  shall  be  written  above  the  signature,  or  by 
the  circumstance  that  there  shall  appear  to  be  suffi- 
cient space  on,  or  at  the  bottom  of  the  preceding  side 
or  page,  or  other  portion  of  the  same  paper  on  which 
the  will  is  written  to  contain  the  signature ;  and  the 
enumeration  of  the  above  circumstances  shall  not  re- 
strict the  generality  of  the  above  enactment ;  but  no 
signature  under  the  said  act  or  this  act,  shall  be  opera- 
tive to  give  effect  to  any  disposition  or  direction  which 
is  underneath  or  which  follows  it,  (r)  nor  shall  it  give 
effect  to  any  disposition  or  direction  inserted  after  the 
signature  shall  be  made."1 

223.  Although  documents  are  necessarily  brought 
before  the  tribunal  by  means  of  verbal  or  parol  evi- 
dence, that  evidence  must  be  limited  to  giving  such 
a  general  description  of  the  document  as  shall  be  suffi- 
cient  to  identify  it,  and  deposing  to  the  real  evidence 
afforded  by  its  visible  state.  Thus  a  keeper  of  rec- 
ords may  speak  as  to  the  condition  in  which  they 
are,  but  nol  as  to  their  contents,  (j)  It  is  commonly 
said  that  "Parol  evidence  is  inferior  (or  secondary) 
to  written  ; "  thai  "  Written  evidem  1  i  superioi  to 
verbal"  &c.;(^)  but  these  anxioms  musl  be  under- 
stood with  much  allowance  and  qualification.  Thai 
evidence  in  writing,  using  the  pin. re  latiori  sen  u,  is 
superior  to  or  even  mor<    satisfactory  than  verbal  evi- 

(>•)  See  In  ill-  Go  Wotton,  I  .  ;,n. 

1  1 1.  159.  non  timonium  non  fcrmr. 

hton    v.   Leigl  I    Sir.      <  od    1  I.  I. 

810. 

'  Mr  Mir  hael    v.   Bank  ton,   1 1    La.    Ann.   •.  Is  to  1 

wills,  see  Hall  v.  Allen,  31  Wi     691.     A-    to  ancient  will, \   < 
Pan  is  v.  Eubanks,  1  S]  eai  1  (S.  C.)  1 
2- 


4i 8  INSTRUMENTS     OF    EVIDENCE. 

dcncc  cannot,  as  a  general  proposition,  be  supported. 
Suppose  a  man  witnesses  a  transaction,  and  after  he 
goes  home  commits  a  narrative  of  it  to  paper,  or  even 
puts  his  seal  to  the  paper,  and  fifty  men  attest  it  as 
witnesses ;  whether  his  memory  or  that  paper  would 
be  the  best  and  more  trustworthy  proof  of  what  took 
place,  depends  very  much  on  circumstances ;  such  as 
the  natural  strength  of  his  memory,  whether  the  trans- 
action were  of  a  nature  likely  to  make  an  impression 
on  his  mind,  the  time  that  has  elapsed,  &c.  It  is  true 
that  the  writing  has  the  advantage  of  permanence ; 
it  will  not  decay  so  soon  as  the  memory  of  the 
witness — "  Vox  audita  perit  ;  lit.era  scripta  manet."  ! 
But  on  the  other  hand  the  witness  may  be  cross- 
examined,  and  compelled  to  give  a  circumstan- 
tial account  of  all  he  saw  and  heard ;  while  the 
writing  only  preserves  what  was  committed  to  it 
in  the  first  instance,  without  power  of  addition  or 
explanation — "  Minus  obstitisse  videtur  pudor  inter 
paucos  signatores ; "  (?/)  "  Testibus,  non  testimoniis, 
credendum  ;"  (x) — added  to  which,  the  evidence  of 
the  witness  would  be  given  under  the  sanction  of  an 
oath.  So,  considered  merely  with  reference  to  proba- 
tive force,  the  notes  of  the  judge,  taken  at  a  trial, 
would  probably  be  deemed  very  satisfactory  evidence 
of  what  there  took  place.  They  are  not,  however, 
even  receivable  as  evidence  of  it.  A  judge  only  takes 
notes  for  his  own  private  convenience  ;  there  is  no 
law  requiring  him  to  do  so :  (y)  indeed  in  former 
times,  the  judges  either  made  no  notes,  or  notes  much 
more  scanty  than   at   present  ;  and   of  Pratt,  C.  J.,  in 

(«)  Quint.  Irnt.  Orat.  lib.  5,  c.  7.  {y)  Per    Lord    Abinger,    C    B.,    in 

(jr)  Burnett's    Crim.    Law   of    Scot-       Leach    v.    Simpson,  5    M.  &  W.  309 
land,  495.  311. 

1  The   spoken    word  perishes;  the   written  word   remains 
See  Morgan's  Law  of  Literature,  vol.  1,  pp.  105,  162. 


DOCUMENTS.  4i9 

particular,  it  is  said  that  he  never  made  any.  (.:)  The 
truth  is,  that  tke  maxims  in  question  have  three  appli- 
cations, i.  In  the  case  of  records  and  other  instru- 
ments, which  the  policy  of  the  law  requires  to  be  in 
writing  and  executed  with  prescribed  formalities,  no 
derivative,  and  consequently  no  verbal,  or  other  parol 
(V)  evidence  of  their  contents  is  receivable,  until  the 
absence  of  the  original  writing:  is  accounted  for: 
neither  is  parol  or  other  extrinsic  evidence  receivable, 
at  least  in  general,  to  contradict,  vary,  or  explain 
them.2     2.  A  like  rule  holds  where  writing;  or  forma  I  i- 

o 

(z)  See  the  note  to  17  Ho.  St.  Tr.  or   "oral."     Thus,    written 

I420.  not   under   seal    are 

(a)  This  is  not  the  only  instance  in  '"  contracts,"  &c.     Rami  v.  Hugh 

our   law  where    the  word    "parol"   is  T.  R.  350-1,  note, 
used  in  a  different  sense  from  "  verbal " 

1  See  a/ife,  note  1,  p.  399. 

"See  Morgan's  Addison  on   Contracts,  vol.  r,  p,  36 
tion    II.,  and   cases  cited    (Huso    v.   McQuade,  52    Mo.   388; 
Clark  v.   N.   V.    Life  In>.  Co.,  7  I. an-  (N.  Y.)    323;   Kerr  v. 
Kuykendall,  44  Miss.  137  ;  Howletl  v.  Howlett,  56  Barb     | 
Campbell  v.  Johnson,  4.4    Mo.  247;   Delano  v.   Goodwin,  48 
N.  II.  203 ;   Perkins  v.  Young,  82  Mass.  (16  Graj  1 

v.  Bailey,  42  Miss.  81 ;  Kirk  v.  Hartman,  63   Pa.  St.  97) 

Parol   evidence  cannol    I"-  received   1  that    by  the 

general  term  "  nephews,"  a  testator  meant  to  include  illegiti- 
mate nephews.  But  if  it  be  shown  that  he  had  no  legitimate 
nephews,  the  ambiguity  would  be  explainable  by   parol   1 

n<  e   (Brower  v.   Bo^  ei  1,  1    Abb.    (N.  Y.)    Vpp    D         114; 
I  [arris  v.  Rathbun,  2  Id 

•  ,  1  he  rule  occur  to  i  how  cir<  umsta  m 
dition  1  '.1  signing  (Robertson  v.  Evan  1  I.     Oi   to 

explain  an  era  ure  1  I  ihn  on  v.  Poll  111    1    1) 

te<  hni<  al  term  -.  or  to  ihow  that  it  is  an  ill-e  M 

tin  v.  (  1. 11L,  8  R.  I.  1  !o,  and  the  like)      And  by  \ 
circum  ;tan<  e  in    parti<  ula  See    VVeavei 

Fletcher,  27  Ark.  51    ;  Ba        »i  \    I  orb<      [6  Md.  - 
v.    Day,  39  Conn.  155  ;  II  irtford  Fire  I        Co.  v.  ^ 
III.  r8o;  Dixon  v.  Cook,  »;  v  .And  ted  '" 

>te  t,  p.  [83.     Let<  her  v.   Let<  her,  50  Mo   1  ton 

Ins.  Co.  v.  St.  Marj  minary,  52    Id    48    ,    M<  md   ». 


420  INSTRUMENTS    OF    EVIDENCE. 

tics  are  not  required  by  law,  but  the  parties  have  had 
recourse  to  them  for  the  sake  of  greater  solemnity  and 
security ;  as  where  a   man   executes  a  bond  to  secure 

James,  33  Iowa,  571  ;  Bell  v.  Woodman,  60  Mc.  465  ;  Allen  v. 

5  >werby,  37  Md.  410  ;  Babbett  v.  Young,  51  N.  Y.  237;  Willis 
v.  Fernald,  33  N.  J.  L.  (4  Yr.)  206  ;  Howlett  v.  Howlett,  56 
B  irb.  4(17  ;  1  >onley  v.  Findall,  32  Tex.  43  ;  Martin  v.  Clark,  8 
R.  I.  3S9;  Suffern  v.  Butler,  21  N.  J.  Eq.  410;  De  Coolff  v. 
Crandall,  1  Sweeney  (N.  Y.)  556;  Black  v.  Columbian  Ins. 
Co.  42  N.  Y.  393  ;  Richards  v.  Schlegelmich,  65  N.  C.  150; 
Foster  v.  McGraw,  64  Pa.  St.  464;  Anthony  v.  Atkinson,  2 
Sweeney,  228;  Leppoc  v.  National,  &c.  Bank,  32  Md.  136; 
Moore  v.  State,  3  Heisk.  493  ;  Brower  v.  Bowers.  1  Abb.  (N. 
Y.)  App.  Dec.  214;  Grimes  v.  Harmon,  35  Ind.  198;  McCray 
v.  Lepp,  Id.  116;  Puckman  v.  Ransom,  35  N.  J.  L.  565; 
McDermott  v.  Hoffman,  70  Pa.  St.  31  ;  Commonwealth  v. 
Moran,  107  Mass.  239;  Langdon  v.  Hughes,  107  Id.  272; 
Mayor,  i\c.  of  N.  Y.  v.  Exchange  Fire  Ins.  Co.,  3  Abb.  (N.  Y.) 
App.  Dec.  261  ;  Bultes  v.  Repp,  Id.  78  ;  Donnell  v.  Hum- 
phreys, 1  Mon.  T.  518;  King  v.  Fink,  51  Mo.  209;  Means  v. 
De  la  Vergne,  50  Id.  343;  Miller  v.  McCoy,  Id.  214;  Slosson 
v.  Hall,  17  Minn.  95;  Clarke  v.  Lancaster,  36  Md.  196;  Smith 
v.  Dallas,  35  Ind.  255  ;  Ball  v.  Benjamin,  56  111.  105  ;  Borland 
v.  VValrath,  33  Iowa,  130;  Bancroft  v.  Grover,  2^  Wis.  463; 
Or. on  v.  Harvey,  Id.  99;  Durham  v.  Gill,  48  111.  151;  Nan- 
derkan  v.  Thompson,  19  Mich.  82;  LanCen  v.  Phoenix,  &c.  Ins. 
Co.,  56  Me.  562;  Robinson  v.  McNiell,  51  111.  225;  Kimball  v. 
Myers,  21  Mich.  276;  Elston  v.  Kinnicott,  52  111.  272;  Ham- 
mond v.  Hannin,  21  Mich.  374;  Swekham  v.  Stockham,  32 
Md.  196  ;  Selby  v.  Friedlander,  22  La  Ann.  381.  Also  a  vast 
number  of  cases  brought  together  and  cited  in  Abbott's 
United  States  Digest  (N.  S.),  vol.  5,  p.  578. 

Parol  evidence  is  admissible  however  to  show  fraud 
(Haynes  v.  Hayward,  41  Me.  488;  Leonard  v.  Smith,  11  Mete. 
(Mass.)  330;  Phyfe  v.  Wardell,  2  Edw.  (N.  Y.)  47  ;  Elliott  v. 
Council,  13  Miss.  (5  Smed.  &  M.)  91  ;  Kennedy  v.  Kennedy,  2 
Ala.  571  ;  Blanchard  v.  Moore,  4  J.  J.  Marsh.  (Ky.)  471  ;  Hus- 
ton v.  Noble,  Id.  130;  Anderson  v.  Bacon,  1  A.  K.  Marsh. 
(Ky.)  48  ;  Martin  v.  Lewis,  Id.  102  ;  Wesley  v.  Thomas,  6  Har 

6  J.  (Md.)  24  ;  Watkins  v.  Stockett,  Id.  435  ;  Chetwood  v.  Brit- 
tain,  2  N.  J.  Eq.  (1  Green.)  438;  Koe  v.  Handy,  41  Barb.  (X. 
Y.)  454  ;  Waddell  v.  Glassell,  18  Ala.  561  ;  Bottomley  v.  United 
States,  1  Story,  135  ;  Townsend  v.  Cowler,  31  Ala.  428;  Lunday 
v.  Thomas,  26  Ga.  538  ;  Pierce  v.  Wilson,  34  Ala.  596  ;  Hamilton 


DOCUMENTS.  42 , 

the  payment  of  money,  when  an  unattested  writing 
would  have  been  sufficient ;  or  where  a  contract  for 
the  sale  of  goods  under  ^10  (and  consequently  not 
within  the  statute  of  frauds),  is  reduced  to  writing, 
&c.  (b)  3.  Where  the  contents  of  any  document  are 
in  question,  either  as  a  fact  directly  in  issue  or  a  sub- 
alternate  principal  fact,  the  document  is  the  proper 
evidence  of  its  own  contents.  (V)  But  where  a  writ- 
ten instrument  or  document  of  any  description  is  not 
a  fact  in  issue,  and  is  merely  used  as  evidence  to 
prove  some  act,  independent  proof  aliunde  is  receiv- 
able. Thus,  although  a  receipt  has  been  given  for  the 
payment  of  money,  proof  of  the  fact  of  payment  may 
be  made  by  any  person  who  witnessed  it.  (</)  Or, 
suppose  a  man  had  declared  by  deed,  or  even  put  on 
record — if  such  a  thing  can  be  supposed     his  intention 

(l<)  See    the    distinction    taken     in  P.uxton    v.  Cornish,   i -•  M.  &  W 

Bellamy's   Case,   (>   Co.   38,  between  Knight   v.    Barbi  and 

deeds    "ex     institutione     legis"    and  Dig.  Ii!>.  22.  lit.  4,  11.  4  and  5. 
"ex    provisione   hominis."     See,  al  ".  (c)  Infra,  bk.  3,  1,  3. 

per  Cutler,    21    H.  VII.  5   li.  pi.  2;         (./)  Rambert  v.  Cohen,  1   Esp.  2x3, 

v.  Congers,  28  Ga.  276;  Gatling  v.  Newell,  9  Ind.  57-'  ;  Stan- 
nard  v.  McCarty,  i  Morr,  (Iowa),  124;  Hum  v.  Carr,  ;  Iowa, 
5 .Si  ;  Akin  v.  Drummond,  2  La.  Ann.  92  ;  Morris  v,  rerrenoire. 
Id.  458 ;  Williams  v.  Vane,  Id.  908;  Rachal  \.  Rachal,  1  Id. 
500 ;  ( .  iv,  Delaroderie,  9  Id.  278;  I  >;t\  i-  v.  Stern,  15    Id. 

177;  Garrett  v.  Croo     .  I  I    |    ( ;   Bai  bin   v.  ( raspard,   Id    | 
I   li  rell   v.   Bean,    to    Md.    217 ;   I  lolbrook    v.    Bui  1.   22    Pii 
(Mi  :'.;  Sanford  v,  I  [andy,  • ;  Wend   (N.  1   I  1   S    .   Bai 

v.  Vasbury,  2  Grant  (Pa.)  Ca     277;  Huntei    v.   Bilyen,  30  111. 

Baltim ,  &c.  Steamboat   Co.  v.  Brown,     \    Pa   Si     77; 

Stark  v.  Littlepage,  1  R  md   (Va  I  lunl    v    i ' 

8  Wheat.  174;   McMahon  v.  Sprangler,  4  Rand   (Va  1     t;S 

den  v.  M  \  0  1 1-  >w,      6. 

1  See  Wil  ion  v.  D<  ir,  69  V  ( '.    1  -,7  i    losl)  n    »    I 
Barb.  59  1 ;   Eaton  v    \      :r,  a  Abb.  (N.  V  1    \        1 1 
son  v.  I'  ■  1    in,  17   Minn.    •    1  ;  Knablani  h   v.    Krom 
Id.  300;  Thrasher  v.  An  l<  >    >n,  15  Ga.  5  (9;  Stapleton  v.  Ki 
3S  Iowa,  28 


422  INSTRUMENTS    OF    EVIDENCE. 

to  rob  or  murder  another,  this  would  not  exclude  ver- 
bal or  other  evidence,  thai  he  had  made  similar  dec- 
larations of  intention  by  word  of  mouth.  So,  al- 
though where  the  contents  of  a   marriage  register  are 

in  issue,  verbal  or  other  evidence  of  those  contents  is 
not  receivable,  the  fact  of  the  marriage  may  be  proved 
by  the  independent  evidence  of  a  person  who  was 
present  at  it.  This  distinction  is  well  illustrated  by 
the  case  of  Horn  v.  Noel,  (e)  in  which  it  was  proposed 
to  support  the  defense  of  the  coverture  of  the  defend- 
ant, by  two  witnesses  who  deposed  that  they  were 
present  in  a  Jewish  synagogue,  when  the  defendant 
was  married  to  H.  N.  The  plaintiffs  counsel  con- 
tended that  this  evidence  was  insufficient  ;  that  it  was 
necessary  for  the  defendant  to  show  that  a  marriage 
had  been  celebrated  according  to  the  rites  of  the 
Jews  ;  that  with  them,  what  took  place  in  the  syna- 
gogue was  merely  a  ratification  of  a  previously  writ- 
ten contract ;  and  as  that  contract  was  essential  to  the 
validity  of  the  marriage,  it  ought  to  be  produced  and 
proved.  (_/")  The  contract,  in  the  Hebrew  tongue,  was 
accordingly  put  in,  and  translated  by  means  of  an  in- 
terpreter, and    the    plaintiff  was  nonsuited.1     It   must 

also  be  added,  that  the  rule  excluding  parol  evidence 
as  inferior  to  written,  does  not  exclude  circumstantial, 

(e)  I  Camp.  61.  (/)  See,  on    this  subject,    Rogers's 

Eccl.  Law,  659,  2nd  ed. 

'  See  Wilkie  v.  Collins,  48  Miss.  497  ;  Brower  v.  Bowers,  1 
Abb.  (N.  X .)  App.  Dec.  214.  Plaintiff's  name  was  John  Gott- 
lieb Kiminel,  his  wife  was  known  as  Philopena  K  iminel,  and 
evidence  that  her  maiden  name  was  Utz.  In  an  ac- 
tion for  criminal  conversation  in  which  it  was  necessary  to 
prove  actual  marriage,  a  certificate  of  marriage  in  Wurtem- 
rg  between  John  Gottlieb  Kimmel  and  Sabrina  Philopena 
Utz  was  field  to  be  evidence  of  the  marriage,  without  other 
identification  of  the  persons  (Ilutchins  v.  Kimmel,  30  or  31 
Mich.  ;  American  Law  Register,  April,  1875). 


DOCUMENTS.  423 

\g)  nor,  according  to  the  better  opinion,  self-disserv- 
ing evidence.  (//) 

224.  But  although  documentary  evidence  may 
not  be  receivable,  for  want  of  being  verified  on  oath 
or  its  equivalent,  or  traceable  to  the  party  against 
whom  it  is  offered,  the  benefit  of  its  permanence  is 
not  always  lost  to  justice.  Thus,  a  witness  who  has 
drawn  up  a  written  narrative,  or  made  a  .written 
memorandum  of  a  matter  or  transaction,  may  in 
many  cases  use  it  while  under  examination,  as  a 
script  to  refresh  his  memory,  (z)  ' 

225.  As  connected  with  this  subject  may  be  noticed 
the  maxim  of  law,  "  Nihil  tarn  conveniens  est  naturali 
aequitati,  unumquodque  dissolvi  eo  ligamine  quo  liga- 
tum  est."  (/•)  "  Ouomodo  quid  constituitur,"  says  one 
of  our  old  books,"eodem  modo  dissolvitor;  record 
per  record,  escript  per  escript,  (/)  parliament  per  par- 
liament, parol  per  parol."  (m)  For  instance,  things 
that  lie  in  grant,  as  they  must  be  created  l>\  deed,  can- 
not be  surrendered  without  deed.  (#)  This  principle 
was  also  recognized  by  the  Roman  law  "  Nihil  tam 
11.1t male  est,  quam  eo  genere  quicquid  dissolvere,  quo 
colligatum  est:  ideo  verborum  obligatio  verbis  tol- 
litur:    nudi    consensus   obligatio   contrario    consensu 

(/)  l;k.  3.  pt.  2,  ch.  I,  Id.  43  b  ;  Jei       l  j  ;  3 

Un  Bk.  3,  pt.  2,  ch.  7. 

(1)  ndw<  II,    <  lomb.  un- 

Doe  d.  1       rch    v,      d  'I  be 

1  1     I     74y ;  Burton  v.  Plum 

B 
I?'.  Morgan,  -z  M  '  ' 

Phill.  I       .  u 

••!.  ;  Dyei  v.  Best,  4  II.  &  1     189  838. 

(i->  2   in  t.    |6o,  573 ;  4  1  :  l!'.  338 

2  Co.  53  a  ;  a  Id.  57  1» ;  5    I 

1  Sec  Kan  v.  Si  1 ,  ei  .  ;  i  Iowa,  1 23. 


424  INS  TR  ( rMEN  TS    OF    E I  'IDENCE. 

dissolvitur."  (o)  !  But  the  performance  of  a  condition 
in  an  instrument  under  seal,  may  be  proved  by  in- 
ferior evidence ;  (/>)  for  this  docs  not  invalidate  the 
instrument,  but  sets  it  up.  Thus,  payment  of  a  bond 
may  be  proved  by  parol,  &c.  (q) 

226.  It  has  been  already  stated,  (r)  and  is  indeed 
an  obvious  branch  of  the  principle  in  question,  that 
"  parol,"  or,  to  speak  more  correctly,  "  extrinsic"  evi- 
dence, is  not  in  general  receivable  to  contradict,  vary, 
or  explain  written  instruments.  "  It  would  be  incon- 
venient," says  one  of  our  old  books,  "  that  matters  in 
writing,  made  by  advice  and  on  consideration,  and 
which  finally  import  the  certain  truth  of  the  agree- 
ment of  the  parties,  should  be  controlled  by  averment 
of  the  parties,  to  be  proved  by  the  uncertain  testi- 
mony of  slippery  memory."  (s)  But  there  are  many 
cases  where  the  rejection  of  such  proof  would  be  the 
height  of  injustice,  and  even  be  absurd.  1.  With 
respect  to  the  varying  or  explaining  of  instru- 
ments there  are  two  rules,  "Ambiguitas  verborum 
patens  nulla  verificatione  excluditur;"  (7)  "Ambi- 
guitas verborum  iatens  verificatione  suppletur ;  nam 
quod  ex  facto  oritur  ambiguum,  verificatione  facti 
tollitur."  The  following  commentary  by  Lord  Ba- 
con on  the  latter  of  these  maxims,  is  the  recognized 
basis  of  the  law  governing  this  subject,  (u)  "There 
be  two  sorts  of  ambiguities  of  words .  the  one  is 
ambiguitas  patens,  and  the  other  Iatens.  Patens  is 
that  which  appears  to  be  ambiguous  upon  the  deed  or 
instrument  ;  Iatens  is  that  which  seemeth  certain  and 

(o)  Dig.  lib.  50,  tit.  17,  1.  35.  (;-)   Supra,  §  223. 

(/)  See     the     authorities     eited     in  (s)   5  Co.  26  a. 

West  v.  Blakeway,  3  Scott,  N.  R.  199.  (t)   Lofft.  Max.  249. 

(#)  Doct.  &  Stud.  Dial.  1,  ch.  12.  («)   Bac.  Max.  of  the   Law,  R«£    23 

1  See  Broom's  Legal  Maxims,  p.  794*. 


DOCUMENTS.  425 

without  ambiguity,  for  anything  that  appeared  upon 
the  deed  or  instrument  ;  but  there  is  some  collateral 
matter  out  of  the  deed  that  breedeth  the  ambisfuitv. 
Ambiguitas  patens  is  never  holpen  by  averment  ;  and 
the  reason  is,  because  the  law  will  not  couple  and 
mingle  matter  of  specialty,  which  is  of  the  higher 
account,  with  matter  of  averment,  which  is  of  inferior 
account  in  law;  for  that  were  to  make  all  deeds 
hollow,  and  subject  to  averments,  and  so  in  effect, 
that  to  pass  without  deed,  which  the  law  appointeth 
shall  not  pass  but  by  deed.  Therefore  if  a  man  give 
land  to  I.  D.,  ct  I.  S.  et  haeredibus,  and  do  not  limit  to 
whether  of  their  heirs,  it  shall  not  be  supplied  by 
averment  to  whether  of  them  the  intention  was  the 
inheritance  should  be  limited.  So  if  a  man  give  land 
■in  tail,  though  it  be  by  will,  the  remainder  in  tail,  and 
add  a  proviso  in  this  manner:  Provided  thai  it  he, 
or  they,  or  any  of  them  do  any,  &c.  according  to  the 
usual  clau^«  s  of  perpetuities,  it  cannot  be  averred 
upon  the  ambiguities  of  the  reference  ol  this  clause, 
that  the  intent  of  the  devisor  was,  that  the  restraint 
should  go  only  to  him  in  the  remainder,  and  the  heirs 
of  his  body  ;  and  thai  the  tenanl  in  tail  in  possession 
was  meant  to  be  at  large.  Of  these,  infinite  ca 
might  be  put;  for  it  holdeth  geneiallj  thai  all 
ambiguity  of  words  by  matter  within  the  deed,  and 
not  out  of  the  deed,  shall  be  holpen  b)  com  trud  ion, 
or  in  some  1 .1  e  by  ele<  I  ion,  bul  nevei  b)  a\  1  1  mcnl 
bul  rather  shall  make  the  deed  void  foi  un<  1  rtainty. 
Bui  if  ii  be  ambiguitas  latens,  then  otherwi  e  il 
if  1  granl  my  manoi  ol  S.  t'»  I.  F.  and  his  heirs,  here 
appearel h  no  ambiguit)  .it  all ;  but  if  the  trul h  I" 
thai  I  have  the  manor:  both  ol  South  s.  and  North 
S.,  this  ambiguity  is  matt  1  in  1  u  1.  and,  th<  n  fore,  it 
shall   be   holpen   by  avi  rm  nt,  whi  thei   ol  thi  m   was 


426  INSTRUMENTS    OF    EVIDENCE. 

that  the  party  intended  should  pass.  So  if  I  set  forth 
my  land  by  quantity,  then  it  shall  be  supplied  by  elec- 
tion, and  not  averment.  As  if  I  grant  ten  acres  of 
wood  in  Sale  where  I  have  ioo  acres,  whether  I  say  it 
in  my  deed  or  no,  that  I  grant  out  of  my  ioo  acres, 
yet  there  shall  be  an  election  in  the  grantee,  which 
ten  he  will  take.  And  the  reason  is  plain,  for  the 
presumption  of  the  law  is,  where  the  thing  is  only 
nominated  by  quantity,  that  the  parties  had  indifferent 
intentions  which  should  be  taken  ;  and  there  being  no 
cause  to  help  the  uncertainty  by  intention,  it  shall  be 
holpen  by  election.  But  in  the  former  case  the  differ- 
ence holdeth,  where  it  is  expressed  and  where  not ; 
for  if  I  recite,  Whereas,  I  am  seized  of  the  manor  of 
North  S.  and  South  S.,  1  lease  unto  you  unum  mane- 
rium  de  S.,  there  it  is  clearly  an  election.  So  if  I  recite, 
Where  I  have  two  tenements  in  St.  Dunstan's,  I  lease 
unto  you  unum  tenementum,  there  it  is  an  election, 
not  averment  of  intention,  except  the  intent  were  of 
an  election,  which  may  be  specially  averred.  An 
other  sort  of  ambiguitas  latens  is  correlative  unto 
these ;  for  this  ambiguity  spoken  of  before,  is  when 
one  name  and  appellation  doth  denominate  divers 
things,  and  the  second,  when  the  same  thing  is  called 
by  divers  names.  As  if  I  give  lands  to  Christ 
Church,  in  Oxford,  and  the  name  of  the  corporation  is 
Ecclesia  Christi  «in  Universitate  Oxford,  this  shall  be 
holpen  by  averment,  because  there  appears  no  ambi- 
guity in  the  words  ;  for  this  variance  is  matter  in 
faet,  but  the  averment  shall  not  be  of  intention,  be- 
cause it  doth  stand  with  the  words.  For  in  the  case 
of  equivocation  the  general  intent  includes  both  the 
special,  and,  therefore,  stands  with  the  word  ;  but  so 
it  is  not  in  variance,  and,  therefore,  the  averment 
must  be  of  matter,  that  do  endure  quantity,  and  not  in- 


DOCUMENTS.  427 

tention.  As  to  say  of  the  precinct  of  Oxford,  and  oi 
the  University  of  Oxford,  is  one  and  the  same,  and 
not  to  say  that  the  intention  of  the  parties  was,  that 
the  grant  should  be  to  Christ  Church  in  that  Univer- 
sity of  Oxford."  A  host  of  cases  on  this  subject,  with 
numerous  qualifications  and  distinctions,  are  to  be 
found  in  the  books,  (x)  We  will  merely  add  the  fol- 
lowing important  observations,  from  the  work  of 
Vice-Chancellor  Wigram, "  Extrinsic  Evidence  in  the 
Interpretation  of  Wills."  (jj/)  "A  written  instrument 
is  not  ambiguous,  because  an  ignorant  and  uninformed 
person  is  unable  to  interpret  it.  It  is  ambiguous,  only 
if  found  to  be  of  uncertain  meaning,  when  persons  oi 
competent  skill  and  information  are  unable  to  do 
Words  cannot  be  ambiguous,  because  they  are  unin- 
telligible to  a  man  who  cannot  read  ;  nor  can  they  be 
ambiguous,  merely  because  the  court  which  is  called 
upon  to  explain  them  may  be  ignorant  of  a  particular 
fact,  ait,  or  science,  which  was  familiar  to  the  person 
who  used  the  words,  and  a  knowledge  of  which  is 
therefore  necessary  to  a  right  understanding  ol  the 
words  he  has  used.      If    this  be    not   a    just   conclusion, 

ii  inn  1  follow  thai  the  question,  whether  a  will  is  am- 
biguous, might  be  dependent,  nol  upon  the  propriety 
of  the  language  the  testator  has  used,  but  upon  the 
degree  of  knowledge,  general  01  even  local,  which  .1 
particular  judge  might  happen  to  po  1  ;  nay,  Lhc 
tei  hnical  precision  and  a<  curac)  o\  a  ientific  man 
might  occasion  hi s  int<  tai  y,  .1  propoi  ition  too  ab- 
surd for  an  argument.    .    .    .      V  ""■  a  di  ion 

(*)  in    2 

PI     :    I  ■    I.  ;   -. ti  1     '•     ■ 

•1  i  1  the  In-      B  ' 

terpretation  of  Wills,"  4th   ed.  ; 

see,  also,  Gram   v,  '  Ira  it,  L    Rep.,  5 


4-^S  INSTRUMENTS    OF    EVIDENCE. 

must  be  taken  between  inaccuracy  and  ambiguity  of 
language.  Language  may  be  inaccurate  without  be- 
ing ambiguous,  and  it  may  be  ambiguous  although 
perfectly  accurate.  If,  for  instance,  a  testator  having 
one  leasehold  house  in  a  given  place,  and  no  other 
house,  were  to  devise  his  freehold  house  there  to  A.  B. 
the  description,  though  inaccurate,  would  occasion  no 
ambiguity.  If,  however,  a> testator  were  to  devise  ar. 
estate  to  John  Baker,  of  Dale,  the  son  of  Thomas, 
and  there  were  two  persons  to  whom  the  entire  de- 
scription accurately  applied,  this  description,  though 
accurate,  would  be  ambiguous.  It  is  obvious,  there- 
fore, that  the  whole  of  that  class  of  cases  in  which  an 
inaccurate  description  is  found  to  be  sufficient  merely 
by  the  rejection  of  words  of  surplusage,  are  cases  in 
which  no  ambiguity  really  exists.  The  meaning  is 
certain,  notwithstanding  the  inaccuracy  of  the  tes- 
tator's language." l 

227.   2.  There  are  some  other  exceptions  to  the 

rule  rejecting  intrinsic  evidence  to  affect  written  in- 
struments. Foremost  among  them  come  those  cases 
where  it  is  sought  to  impeach  written  instruments  as 

1  See,  as  to  latent  and  patent  ambiguity,  Morgan's  Addison 
on  Contracts,  vol.  1,  p.  338,  §  222,  et  seq.,  and  cases  cited.  See 
Morris  v.  Edwards,  1  Ohio,  189;  Cabot  v.  Wendson,  11  Allen, 
546;  Hinneman  v.  Rosenback,  39  N.  Y.  98;  Riclwirdson  v. 
Beede,  43  Me.  161  ;  Brown  v.  Cambridge,  3  Allen,  474;  Bus- 
well  v.  Poiner,  32  N.  Y.  312;  Eaton  v.  Alger,  2  Keyes,  41;  The 
Lady  Franklin,  8  Wall.  325  ;  Tucker  v.  Maxwell,  11  Mas.  143; 
Johnson  v.  Johnson,  Id.  359,  363;  Johnson  v.  Weed,  9  Johns. 
310;  Delaney  v.  Towns,  1  Allen,  407;  Wilkinson  v.  Scott,  17 
Mass.  249;  Putman  v.  Lewis,  8  Johns.  389;  City  Bank  v. 
Adams,  45  Me.  455  ;  Billings  v.  Billings,  10  Cusn.  178  ;  Shaw 
v.  Shaw,  50  Me.  94  ;  Parker  v.  Syracuse,  31  N.  Y.  376  ;  Nichols 
v.  Williams,  7  C.  E.  Green,  63;  Young  v.  Gregory,  46  Me, 
475;  Gould  v.  Norfolk  Lead  Co.  9  Cush.  338;  Rogers  v 
McPheters'  40  Me.  114;  Whitney  v.  Slayton,  40  Id.  224. 


DOCUMENTS.  429 

having  been  obtained  by  duress,  (z)  menace,  (a)  fraud, 
covin,  or  collusion ;  (J))  which,  as  is  well  known, 
vitiate  all  acts,  however  solemn,  or  even  judicial.  (<) 
"Non  videtur  consensum  retinuisse  si  quis  ex  prae- 
scripto  minantis  aliquid  immutavit"  (d} — "  Dolus  el 
fraus  nemini  patrocinantur "  (e) — "Jus  et  fraus  nun- 
quam  cohabitant"  (/) — "Qui  fraudem  fit  frusta  agit  " 
(^■) — "  Dolus  circuitu  non  pu'rgatur."  (//)  To  reject 
parol  or  other  extrinsic  proof  in  such  cases,  would  be 
to  apply  the  rule  in  question  to  a  purpose  for  which  it 
was  never  intended,  and  to  render  it  a  protection  to 
practices  which  the  object  of  the  law  is  to  suppr< 
But  the  party  to  an  instrument  is  estopped  from  seating 
up  his  own  fraud,  &c.  to  avoid  the  instrument ;  (*) 
as  also  are  those  claiming  under  him  ;  and  the  like 
rule  holds  in  the  case  of  menace  or  duress.  (/•)  These 
principles  are  found  in  the  laws  of  ether  countries  as 
well  as  our  own,  (/) — 

" Nee  lex  est  justior  ulla, 


Quam  necis  arti:  perire  sua."  (m) 

228.   3.  Another  exception   is  to  be   found  in  the 
admissibility  of  the  evidence  of  usage;  "Optimus  in- 

(2)  Dig.  lib.  50,  tit.  17,  1.  116 ;  l'  (/)  1  r  ••! 

kins,  .'  [0  ;  Bac.  Max.  Reg.  6  ;  6  II". 
Lo.  Cas,  44,  45  ;  n  '.'-  B.  11a;  a 
I    ch.  305  ;  6  Exch,  67.  -    PI 

(<i)  Dig.   in  .   B       Max,  R.      bl 

22;  Shep.  Tow  h  61 ;  u    \       1 

1 1 

(6)  Dig.  lib.  )  1,  tit.  1  .  Corp.     1 

Jur    Can.    Prolegom.    Pai      Po  t.  pp.      M.  &  NV.  '    •  ,  per  1 
27  and  28.  1 

I  bat  judii  ial   a<  ti  m  ijr  be  <>^      til 
peached  bk.  3.  pt.  2,     I 

ch.  9.  '  pt.  1,  liv.  3,  tit.  ( 

(</)  Bac.  M  ix.  Reg.  22. 

M.  30   Edw.  III.  32;  14   Hi 
VIII.  •  A.;  39  Hen.  V  I    5".  pi.  1 5  ;  1       ' 
Keb.  546.  ("')   '   "    Bl.  585. 


430  INSTRUMENTS    OF    EVIDENCE. 

terpres  rerum  usus."  (;/)  "  M agister  rerum  usus."  (r) 
"Consuetudo  loci  est  observanda."  (/)  Many  01 
the  cases  on  this  subject  will  be  found  collected  in 
Broom's  Maxims ;  (^)  and  the  general  principles  by 
which  it  is  governed  are  thus  clearly  laid  down  in  a 
work  of  authority.  "  Evidence  of  usage  has  been  ad- 
mitted, in  aid  of  the  construction  of  written  instru- 
ments. This  evidence  has  been  received  for  explain- 
ing or  filling  up  terms  used  in  commercial  contracts, 
policies  of  insurance,  negotiable  instruments,  and  other 
writings  of  a  similar  kind — when  the  language,  though 
well  understood  by  the  parties,  and  by  all  who  have 
to  qct  upon  it  in  matters  of  business,  would  often  ap- 
pear to  the  common  reader  scarcely  intelligible,  and 
sometimes  almost  a  foreign  language.  The  terms 
used  in  these  instruments  are  to  be  interpreted,  ac- 
cording to  the  recognized  practice  and  usage  with  re- 
ference to  which  the  parties  are  supposed  to  have 
acted  ;  and  the  sense  of  the  words,  so  interpreted,  may 
be  taken  to  be  the  appropriate  and  true  sense  intended 
by  the  parties."  (V)  "  Evidence  of  usage  has  been  ad- 
mitted, in  contracts  relating  to  transactions  of  com- 
merce, trade,  farming,  or  other  business — for  the  pur- 
pose of  defining  what  would  otherwise  be  indefinite, 
or  to  interpret  a  peculiar  term,  or  to  explain  what  was 
obscure,  or  to  ascertain  what  was  equivocal,  or  to  an- 
nex particulars  and  incidents  which,  although  not 
mentioned  in  the  contracts,  were  connected  with  them, 
or  with  the  relations  growing  out  of  them  ;  and  the 
evidence  in  such  cases  is  admitted,  with  the  view  of 
giving  effect,  as  far  as  can*be  done,  to  the  presumed 
intention  of  the  parties.     Where  the  language  of  the 

(;/)  2  Inst.  282.  (/])  Pp.  8S2-896,  4th  ed. 

(0)  Co.  Litt.  229  b.  (r)  2  I'liill.   Ev.  407    10th  ed.     See 

(/)  6  Co.   67  a;  7  Id.  5  a  ;   10  Id.      also  2  Stark.  Ev.  361,  3rd  ed. 
140  a. 


DOCUMENTS.  43 1 

contract- itself  manifests  an  intention  to  exclude  the 
operation  of  usage,  evidence  of  usage  cannot  be  ad- 
mitted. And  in  all  cases  in  which  this  evidence  is 
admitted,  it  must  be  presumed  that  the  usage  was 
known  to  the  contracting  parties,  and  that  they  con- 
tracted in  reference  to  it,  and  in  conformity  with  it. 
(s)  With  this  understanding,  the  reception  of  evi- 
dence of  usage  is  not  only  justifiable  in  principle,  but 
absolutely  necessary;  and  without  it,  the  intention  <>t 
the  parties  would  be  often  defeated.  Usage  ma) 
proved,  though  not  general;  it  may  be  local,  and  to 
small  extent — or  professional — or  only  in  a  particular 
branch  of  business,  or  among  a  particular  class  of  per- 
sons. Even  the  usage,  or  rather  the  practice  of  an 
individual  firm,  with  which  a  party  has  contracted. 
may  be  resorted  to  as  a  medium  of  exposition,  it  it 
may  be  reasonably  inferred  that  he  contracted  in  re- 
'erencc  to  such  practice."  (/) 

But  "the  rule  for  admitting  evidence  of  usage 
must  be  taken  always  with  this  qualification,  that  the 
evidence  proposed  is  not  repugnant  to,  or  inco 
cnt  with,  the  written  contract.  It  ought  never  be 
allowed  to  vary  or  contradict  tin  written  in  trum<  nt, 
either  expressly  or  by  implication.  1  I  So,  althou 
where  "  the   language  of  ancient   chart  me 

obscure    from    its   antiquity,   "i    ili'    construction 
doubtful,  t lie  const. 11, t    and   immemorial  usag<  undci 
the  instrument   m.i\  be  re  orted  t<>  for  the  purpose  ot 

1  tplanation,"  still  "  it   can  nevei  be  admitted,  1 n- 

trol  or  contradict  the  exp         >rovi  ions  <>i  th<   in  tru- 
ment"  (x)     And,  lastly,  where  the  in<  idi  nt  hi 

be  annexed    to  a   contra<  I.  1     "I      Hi  h  .1  nun  <    th.it  the 

.       (s)  S«  this.  Kir-l,„cr    P.  Vt 

nus,  12  Mm   .  P.  '  .  361,  399. 

(/)  2  PhtlL  Ev.  115-16,  totli  •  l 


432  INSTRUMENTS    OF    EVIDENCE. 

parties  arc  not  ther^iolves  competent  to  introduce  it, 
by  express  stipulation,  such  an  accident  cannot  be 
annexed  by  the  tacit  stipulation  arising  from  usage. 
E.g.y  the  parties  to  a  contract  which  is  not,  by  law, 
negotiable  cannot  make  it  negotiable  by  an  express 
stipulation  to  that  effect;  and,  therefore,  the  incident 
of  negotiability  cannot  be  added  to  such  a  contract 
by  evidence  of  usage,  (jj/) 

229.  It  seems  a  rule  of  universal  jurisprudence, 
that  imperfections  or  blemishes  apparent  on  the  face 
of  a  document,  such  as  interlineations,  erasures,  &c., 
do  not  vitiate  the  document,  unless  they  are  in  some 
material  part  of  it.  (z)  One  of  our  old  books  lays 
down  generally,  that  "  an  interlineation,  without  any- 
thing appearing  against  it,  will  be  presumed  to  be  at 
the  time  of  the  making  of  the  deed,  and  not  after."  (a) 
Other  authorities  seem  disposed  to  extend  this  doc- 
trine to  erasures  ;  (<£)  and  both  positions  have  been 
confirmed  by  the  Court  of  Queen's  Bench,  (c)  But 
that  an  erasure  or  alteration  in  a  suspicious  place, 
must  be  explained  by  the  party  seeking  to  enforce  the 
instrument,  has  been  law  from  the  earliest  times,  (d) 
And  this  principle  is  fully  recognized  at  the  present 
day,  {e)  especially  where  an  alteration  affects  the 
stamp  required  for  a  document.  (/*)    The  whole  sub- 

(y)  Crouch    v.  Credit     Fonder    of  (a)  Trowel   v.  Castle,  I  Keb.  21  (5), 

England,  L   Rep.,  8  Q.  B.  374,  386.  recognized    Butl.    Co.     Litt.    225    b. 

(z)  Mascard.   de    Prob.   Concl.  256,  note  (1). 

284;  Lancel.  Inst.  Jur.  Can.  lib,  3,  tit.  (b)  Shep.  Touch.  53,  note(l),  8th  ed. 

Mi  §  43,  Devot.  Inst,  Canon,  lib.  3,  tit.  (c)  Doe  d.  Tatum   v.  Catomore,  :6 

9,  i  21,  5th  ed.  ;  I           lib.  6,c.  34,  s.  5  :  Q.  B.  745.     See  also,  per  Lord  Cran- 

Co.  Litt.  225  b  ;   lO Co.  92  b  ;  Cro.  Car.  worth,  V.  C,  Simmons   v.   Rudall,  : 

.;  Dicks.  Law  Ev.  in  Scotl.179.  The  Sim.  N.  S.  115,  136. 

rule  laid   down    in    Pigot's   Case,  viz.,  (J)  7  Edw.  III.  57,  pi.  44  ;  and   27, 

that   the   alteration    of  a  deed    by  the  pi.  13. 

obligee  himself,  although  it  be  i'n  words  (<?)  Earl  of  Falmouth  v.  Roberts,  o 

pot  material,  makes  the  deed  void,  lias  M.  &  W.  469. 

been  held   not  to  be  law.     Aldous  v.  (/)  Knight  v.  Clements,  8  A.  &  E, 

Comwell,  L.  Rep.,  3  Q.  B.  573,  579.  215. 


DOCUMENTS.  433 

ject  is  however  guarded  by  many  restrictions  and  lim- 
itations, {g)  And  in  the  ease  of  wills,  the  presump- 
tion seems  to  be  the  other  way  ; — the  rule  being  that, 
having  regard  to  the  statute  of  frauds,  and  the  7 
Will.  4  &  1  Vict.  c.  26,  s.  2i,  the  onus  is  east  upon  the 
party  who  seeks  to  derive  an  advantage  from  an  alter- 
ation in  a  will,  to  adduce  some  evidence,  from  which 
the  jury  may  infer  that  the  alteration  was  made  before 
the  will  was  executed.  {Jif 

230.  Various  acts  of  parliament — for  the  s\  stem  is 
unknown  to  the  common  law — have  imposed,  as  ,1 
condition  precedent  to  the  admissibility  in  evidence 
of  most  documents,  the  pre-payment  to  tin  state  of  a 
sum  of  money,  the  receipt  of  which  is  indicated  by  a 
"stamp,"  affixed  by  a  public  officer.     An  exposition  of 

{g)  Sec    Tayl.   Ev.   ;','    [616-1638,  Iso  I         <     ■   <  |    D 

4th  c<l. ;  1    Smith.    I. cad.   Cas.  776  et      Mac.  &  G.  777.     Bui   in 
seq.,5thed. ;   Pigot'  Case,  11  <    '.26b;      it  was  said,  that   the  court   was 
Davidson  v.  Cooper,  1 1  M.  &W.778;      preclu   ed,  by  111  1"  direct 

13  Id.  343.  evident  e,  from  con  alure 

Ui)  ( looper  v.  B01  kett,  4  Moo.  P.  C.     of  I 
C.  419  ;  Doe  d.  Shallcro     v.  Pallmer,  I  1)  the  document 

16  Q.  B.  747,  755 ;  In   the  1  Per   Sii    J.    P.   W  ,:  i  ■,  in  the 

Sykes,  I..  Ri  p  .  3  P.      D.  26  ;  Greville     I  Rep.  i    P  &    D. 

V.  'I  J  le  .  7    Moo.    P.  C.  C.     20  .  Sim-      543,  5 15. 
',    Rudall,   1    Sun.,   N.  S.   1 

1  As  to  where  a  d<  '-'1  i  i  offered  in  evidence,  and  is  objet  ted 
to  i  'i  ei  .1  .ui  -    ,  intei  lineal  ion  >,  i  ir  bin  nl  ed  to  be 

apparent  on  examination,  see  fohn  on  \.  M'<  i   Via,  i 

A  paper  offered   to  be  read  in  n  suit  will  not  I"-  ex<  lu<l<-<]  be« 

i       ii   «  ontain  -  h  relevanl   matti  r  (Nick    \    Re<  tor, 
251).     It    i     no  ■  on  to  the  admi    iibilil  y  of  a  wi  :  hat 

it  is  made  upon  wood,  if  ii  would  I"-  admis  ible  il  made  on 
pape  ■  (Kendall  v.  '  ield,  o  v         I      "I  0  !  1  dot  umenl  in 

a  foreign  Ian  eviden  thejury.il  must  be  translated 

(Meyer  v.   Witt*  M  ■        1       And  thouj 

idled,  it   will  nol  on  that  a<  1  ounl  be  1  (G  v.  G 

son,  t6   \'t.    ;<. ;  ;    Morgan     I  ,aw  of  Literatun  r,  p    11 

And    ■■".  .1    l  1  gi  amm  itica  ' '  ' !     ,m<  ,0 

Vt.  565. 

28 


434  INSTRUMENTS    OF    EVIDENCE. 

the  stamp  laws  would  be  wholly  unsuitcd  to  this 
work  :  but  there;  are  two  things  connected  with  the 
subject  which  ought  to  be  borne  in  mind.  First,  A 
•document  which  is  lost,  (z)  or  not  produced  on  no- 
tice, (/')  will,  in  the  absence  of  evidence  to  the  con- 
trary, be  presumed  to  have  been  duly  stamped.  (/) 
Secondly,  Although  an  unstamped  document  is  not 
admissible  as  evidence  of  a  binding  contract  between 
the  parties,  yet  it  is  evidence  tor  some  collateral  pur- 
poses ;  (111)  as,  for  instance,  to  show  illegality,  or 
fraud,  or  misrepresentation,  in  a  transaction  of  which 
the  document  formed  part.  (11)  The  principal  case 
establishing  this  doctrine  is  that  of  Coppock  v.  Bower, 
(o)  in  which  several  others  will  be  found  cited.  Lord 
Abinger,  C.  B.,  there  says,  "  The  object  of  both  the 
statute  and  common  law  would  be  defeated,  if  a  con- 
tract, void  in  itself,  could  not  be  impeached,  because 
the  written  evidence  of  it  is  unstamped,  and  there- 
fore inadmissible.  If  that  were  so,  a  party  entering 
into  such  agreement  might  avoid  the  consequences  of 
its  illegality,  by  taking  care  that  no  stamp  should  be 

(i)   Pooley  v.  Godwin,  4  A.  &   E.  party  who   relies  on    the    instrument 

94;  Hart    v.  Hart,  1    Hare,  1  ;   R.  v.  must  prove  that  it  was  duly  stamped. 

The   Inhabitants  of  Long  Buckby,  7  Marine  Investment  Company  v.  Heav- 

East,45.  iside,  L.  Rep..  5  App.  Ca.  624. 

(k)  Crisp  v.  Anderson.  1  Stark.  35  ;  (w)  Mattheson    v.  Ross,  2    Ho.   Lo. 

Closmadeuc    v.   Carrel,    18   C.    B.   36.  Cas.  286;  Evans  v.  Prothero,  2   Mac. 

Sec  also  the  case  of  Bradlaugh  v.  De  &  G.  319. 

Rin,  L.  Rep.,  3   C.   P.  2S6,   as   to   the  («)  Coppock   v.  Bower,  4   M.  &  W. 

presumption    that    an    instrument,  on  361  ;  R.   v.   Gompertz,   9  Q.    13.  824  ; 

which  there  is  a  stamp  when  produced  Holmes   v.   Sixsmith,    7    Exch.    802; 

at    the   trial,  was   stamped    in    proper  Ponsford  v.  Walton,    L.  Rep.,  3  C.  P. 

time.  167  ;    Ionides    v.     Pacific     Insurance 

(I)  If  satisfactory  evidence  be  yiven  Company,  L.  Rep.,  6  Q.  B.  674  ;  S.  C. 

that,  at  any  time  after  it  wa>  executed,  (in  Cam.  Scac),  7  lb.  517. 

the    instrument  was    unstamped,   this  (0)  Coppock   v.   Bovver,  4    M.  &  W. 

resumption    is    at    an    end,   and    the  361. 

1  See  the  law  of  stamps  considered  in  Morgan's  Addison  on 
Contracts,  vol.  iii.,  book  iii. 


DOCUMENTS.  435 

affixed   to    it.     I    think,    therefore,    that    in    all   ca 
where  the  question  is,  whether  the  agreement    is  void 
at  common  law  or  by  statute,  and  the  party introdui 
it,  not  to  set  it  up  and  establish  it,  but  to  destroy  it 
altogether,  there  is   no   objection  to   its  admissibility. 
As  in  the  case  of  a  conspiracy,  or  an  agreement 
commit  a  robbery,  on  no   principle  could  it   be  eon- 
tended,  that  a   contract   between  the   parties  for. the 
commission  of  such  an  offense  would  be  inadmissible 
without    a  stamp.     I   think   that   the  stamp    acts  are 
made  for  a  different  purpose — they  are  made  to  pre- 
vent persons  from  availing  themselves  of  the  obliga- 
tory force  of  an  agreement,  unless  that   agreement   is 
stamped." 

231.  Several  important  alterations  in  the  law  and 
practice  relative  to  stamps,  hare  been  made  by  modem 
statutes.  Thus,  by  the  1 7  ex  iS  Vict  c.  83,  s.  27.it 
was  enacted,  that  "  Every  instrument  liable  in  stamp 
duty  shall  be  admitted  in  evidence  in  any  criminal 
proceeding,  though  it  may  nut  have  the  stamp  re- 
quired by  law  impressed  thereon  or  affixed  there! 
And  this  exemption  was  continued  by  the  stamp  a<  t. 
1870.  (/) 

And  the  17  &  18  Vict  c    [25    (the  common  la 
procedure   act,  i'h|i,  19,  and   31,  contains  the 

following    provisions    as    to    the    ad:  I        'I    un- 

stamped document  -  in  1  ivil  1  1  he   t\\ 0  foi m<  1 

which  have  been  re-enacted,  in  substance,  bj    the    tamp 
act,  1S76:  (</) 

Sect  2S.  "  Upon  the  production  of  any  dot  ument 
as  evidence  at   t he  trial   "i   any  1  au  e,  it     hall  I"-  the 
duty  of  the  officer  of  the  court  whose  dut)  it  i 
such  documi  nt,  to  call  the  attention  of  the  judge  to 
any  omission  or  in  ufficiency  of  the  stamp;  and  the 

(/)  33  &  34  Vict.  c.  97,  s.  17- 


436  INSTRUMENTS     OF    EVIDENCE. 

document,  if  unstamped,  or  not  sufficiently  stamped, 
shall  not  be  received  in  evidence  until  the  whole  or 
(as  the  case  may  be)  the  deficiency  of  the  stamp 
duty,  and  the  penalty  required  by  statute,  together 
with  the  additional  penalty  of  one  pound,  shall  have 
been  paid." 

Sect.  29.  "  Such  officer  of  the  court  shall,  upon 
payment  to  him  of  the  whole  or  (as  the  case  may  be) 
of  the  deficiency  of  the  stamp  duty  payable  upon  or  in 
respect  of  such  document,  and  of  the  penalty  required 
by  statute,  and  of  the  additional  penalty  of  one  pound, 
give  a  receipt  for  the  amount  of  the  duty  or  deficiency 
which  the  judge  shall  determine  to  be  payable,  and 
also  of  the  penalty,  and  thereupon  such  document 
shall  be  admissible  in  evidence,  saving  all  just  excep- 
tions on  other  grounds ;  .  .  .  and  the  commis- 
sioners "  of  the  inland  revenue  "  shall,  upon  request, 
and  production  of  the  receipt  hereinbefore  mentioned, 
cause  such  documents  to  be  stamped  with  the  proper 
stamp  or  stamps,  in  respect  of  the  sums  so  paid  as 
aforesaid  :  Provided  always,  that  the  aforesaid  enact- 
ment shall  not  extend  to  any  document,  which  cannot 
now  be  stamped  after  the  execution  thereof  on  pay- 
ment of  the  duty  and  a  penalty." 

Sect.  31.  "  No  new  trial  shall  be  granted,  by  reason 
of  the  ruling  of  any  judge  that  the  stamp  upon  any 
document  is  sufficient,  or  that  the  document  does  not 
require  a  stamp." 


DOCUMENTS.  437 


CHAPTER   II. 


PROOF    OF    HANDWRITING. 


PARAGRAPH 

Proof  of  handwriting 

Proof  of  handwriting  by  resemblance  to  that  of  supposed  writer,  &c      . 
A  species  of  circumstantial  real  evidence 


Not  secondary  to  direct  evidence 


: 


Autograph  or  holograph 

Onomastic  and  symbolic  signatures , 

Different  fuims  of  proof  of  handwriting  hy  resemblance,  &c. 

i°.  Presumption  "  ex  visu  scriptionis" ; 

2D.  Presumption  "  ex  scriptis  olim  visis" 

Knowledge  must  not  have  been  acquired  with  a   view  to  the  sp     - 

ific    occasion  ...  

Refreshing  memory  of  witnesses 

3".  Presumption  "  ex  comparatione  scriptorum"      .... 
General    iu!e    of    the    common    law — nut    receivable    .1  ■    evi- 
dence   . 

I  for  rejecting  it 

Examination  of  them  

Except  .... 

i.   Documents  which   are  evidence  in    thi 

2.   Ancient  ntl>  ....... 

Pri  iof  of  hand  writing   ol  mi  idem  d 
acqu  red  fi  om   p  ....... 

Testing  evid 
i 

Vii  t.  c.  18 

Scientific  evidence  thai 
Infirmative  i                         iffecting  all  pi 
blance 

Ancient  practice  respecting  llie  pi 

232.   In  this  chaptei   il  is  propi i  ed  to  Icr  a 

species  of  proof  n<  <i  isarily  much  resorted  to  in  judicial 
proceedings;  bul  which  pn  ents  many difficultie  ,and 
has  in  every  age  been  found  a   ource  of  embarrassment 


A$3  INSTRUMENTS    OF    EVIDENCE. 

to  legislators,  jurists,  and  practitioners- — the  proof  of 
handwriting,  (a)  '     We  speak  not  of  cases  where  the 

Much  of  this  chapter  has  been  Voet.   ad    Pand.  lib.  22,  tit.  4,  n.  II ; 

taken   from  an  article,  by  the  author,  Mascard.    de    I'roh.   Concl.    2S5,   330, 

in  the  Monthly  Law  Magazine,  vol.  7,  331  ;  and  OughtOIl,  Ordo  Judicior.  tit. 

p.  120.     The  rules  of  the  Roman  law  225.     The  framers  of  the  1  Na- 

ecting  handwriting  are  contained  poleon  seem  to  have  been   fully  sensi- 

in    Novel.    1. XXIII.,    which,  we   are  ble  of  the  difficulties  attendant  on  this 

told  in  the  beginning  of  it,  was  framed  subject,   and,   while    admitting    proof 

in    consequence    of    the    practice   of  of  handwriting  by   comparison,  have 

counterfeiting    handwriting,    and    the  taken    great    pains  to    insure  the  gen- 

difficulties  of  a  case  which  had  arisen  nineness   of   the   specimens  used   for 

.nnenia.     For  the  practice  of  the  the    purpose.       Code    de     Procedure 

civilians,  the  reader  is  referred  to  Cu-  Civile,   pt.  I,  liv.  2,  tit.   10,  a»rt.   193— 

jacius,    in    73    Nov.;    Huberus,    Prsel.  213;  De  la  verification  des  ecritures. 
Jur.  Civ.  lib.  22,  tit.  4,  nn.  16  and  20; 

1  The  different  volumes  of  reports  furnish  many  interesting 
and  valuable  decisions  concerning  the  feature  of  handwriting, 
some  of  which  we  propose  examining.  Where  a  court  has 
admitted  papers  in  evidence,  the  jury,  before  using  them,  must 
pass  upon  their  genuineness  (State  v.  Ward,  39  Vt.  225),  and 
one  method  at  their  command  in  estimating  them  is  by  an  in- 
quiry into  and  a  comparison  of  the  chirography  with  other 
available  specimens  (Adams  v.  Field;  21  Yt.  256;  Gifford  v. 
Ford,  5  Yt.  532);  but  see  Rowt  v.  Kile,  1  Leigh,  216.  Though 
such  a  comparison  cannot  be  employed  as  a  ruse  to  get  cer- 
tain papers  before  the  jury  (Guffey  v.  Deeds,  29  Pa.  St.  378). 
A  letter,  purporting  by   postmark   and  contents  to  come  from 

erson  whose  signature  a  party  wishes  to  prove,  in  answer 
to  a  letter  proved  to  have  been  sent  by  the  party  to  such  per- 
son, has  been  held  not  to  be  evidence  to  prove,  by  compari- 
son, the  signature  in  dispute (Disbrow  v.  Farron,3  Rich.  (S.  C.) 
382).  A  writing  which  is  so  antiquated  that  no  witness  can 
be  procured  who  has  ever  seen  its  signer  write,  must  be  proved 
by  a  comparison  of  handwritings  (Cantey  v.  Piatt,  2  McConl 
(S.  C.)  260).     Otherwise,  the  only  admissible  testimony  [as  is 

d  in  Pope  v.  Askew,  1  Ired.  (X.  C.)  L.]  is  that  of  one  who 
has  seen  the  person  write,  or  who  has  corresponded  witli  1dm 
or  paid  drafts  or  checks  for  him.  So  also  Gordon  v.  Price,  10 
lied.  (N.  C.)  385  ;  but  see  McKeone  v.  Barnes,  108  Mass.  344; 
Morey  v.  Safe  Deposit  Company,  34  X.  Y.  Superior  Ct.  (J.&S.) 
154;  Goodyear  v.  Vosburgh,  63  Barb.  (N.  Y.)  154;  Rowing 
v.  Man  lev,  49  X.  Y.  193.  Comparison  of  hands  or  not  was  held 
to  be  evidence  in  a  criminal  case  in  United  States  v.  Craig,  4 


DOCUMENTS.  459 

fact  tru't  a  certain  document  was  written,  is  proved  by 
eye-witnesses,  or  by  the  admissions  of  parties,  of  is  in- 
ferred from  circumstances;  but  of  cases  where  ajudg- 

Wash.  29,  but  the  contrary  appears  to  have  been  held  in  State 
v.  Branson,  1  Root  (Conn.)  307;  State  v.  Nettleton,  Id.  308; 
People  v.  Hewitt,  2  Park.  (N.  V.)  Cr.  20;  State  v.  (ovens,  5 
Ala.  747  ;    lioyt  v.  Stuart,  3  Bosw.  (X.  Y.)  447. 

In  July,  1865,  in  the  city  of  New  Bedford,  Massachusetts — 
an   elderly  maiden    lady  named   Sylvia    Ann    Howland,  died, 
leaving  property  to  the  amount  of  more  than  two  millions 
dolla's.     The  contest  in   the  courts  for  the   po  >n  of  this 

large  sum  of  money  has  called  public  attention  t<i  one  of  the 
strangest  stories  of  cupidity,  and  perhaps  attempted  fraud, 
that  were  ever  recorded  elsewhere  than  in  the  pages  ol  a  work 
of  fiction. 

The  I  lowland  family  had  always  been  wealthy.  When*  in 
1833,  Miss  !  lowland's  grand-father,  Isaac  Howland.  died,  he 
left  a  fortune  of  two  hundred  and  eighteen  thousand  dollars, 
in  personal  pro|  erty,and  thirty  thousand  dollars  in  real  estate, 
one  half  of  which  his  will  gave  to  his  grand-daughter,  Sylvia 
Ann,  and  the  oilier  half  to  her  sister  Abby  and  her  husband, 
Edward  Motl  Robinson,  the  latter  being  a  New  Bedford  mer- 
chant, well  known  in  his  lifetime  for  his  wealth,  his  mercan- 
tile skill,  and  his  penuriousness.  In  1847  Gideon  I  lowland, 
the  son-in-law  and  partner  ol   I  aac,  and  the  fatl  Sylvia 

Ann  1  lowland  and  Abby  Robinson,  died,  lea>  ind 

larger  fortune  of  six  hundred  and  fifty  thousand  dollars,  to  be 
equall)  divided  between  Sylvia  Ann  and  her  brother-in-law, 
Mr.  Robinson.     Mi      Howland*!  in  both  these  fortui 

Mowed  to    remain   invested  in    the  bu  ol  the  old 

firm,  as  was  that  ol   Mr.  and   Mrs   Robin  on,      Phe  firm  1 
tinned  to  r  until,  as  we  have  said,  Mi  is   I  low  land's  1   1 

1  uiie  had,  in  1865,  swelled  1  1  wo  million  doll 

I  dward  Motl  Robinson  died  in  |un 
irrty  ol  nearh    ;ix  millions  ol  dollars  and   an  only 
Mi      Hetty  1  low  land  Robim  on      Bi  hi     will  he 
daughtei    about    one    million    ol  dollai  'l"' 

income  ol  the  remaining  five  millions  foi    life,  the  princl] 
being  given  to  her  issue,  01  il    die  died  witho  "  h 

pel  on  1         pointed    by   will.     S 

thin v  thousand  dollars,  inherited   from    h<  1 
ceived  by  gift  ol  hei   aunl      At  this  time  the  aunt,  Sylvia  Ann 
Howland,  had  two  million  dolla  "'  ,,,c 


440  INSTRUMENTS    OF    EVIDENCE. 

ment  or  opinion,  that  a  given  document  is  or  is  not 
in  the  handwriting  of  a  given  person,  is  based  on  the 
resemblance  of  the  handwriting  to,  or  its  dissimilarity 

niece,  Hetty  EI  owl  and  Robinson,  one  million  dollars  in  her 
own  right,  the  income  of  five  million  dollars  for  life,  and  the 
certainty  that  the  last  five  million  dollars  would  go  either  to 
her  children  or  to  such  persons  as  she  might  select. 

When  Sylvia  Ann  1  low  land  died,  in  July,  1865,  or  one 
month  after  Mr.  Robinson,  a  will  was  found,  made  bv  her  in 
September.  1S63.  with  a  codicil  added  in  November,  1864,  both 
together  giving  to  her  niece,  Miss  Robinson,  the  income  of 
one  million  of  dollars  for  life,  with  remainder  to  members  of 
the  Howland  family,  and  distributing  the  other  million  in 
legacies  and  charities.  Dissatisfied  with  this  meagre  addition 
to  her  resources,  Miss  Robinson  contested  the  will  on  the 
ground  of  mental  and  bodily  infirmity  in  her  aunt,  and  undue 
influence.  This  contest,  however,  she  shortly  after  abandoned, 
and  in  December,  1865,  commenced  in  the  United  States  Cir- 
cuit Court  the  extraordinary  suit  known  as  the  Howland  Will 
Case,  and  which  involved  the  peculiar  question  of  the  identity 
of  Miss  Howland's  signatures,  whose  consideration  becomes 
valuable  in  this  connection. 

In  beginning  her  suit  Miss  Robinson  alleged  that  her  aunt 
and  herself,  being  very  much  displeased  with  the  way  in  whi<  h 
her  mother's  share  of  the  money  which  came  from  Isaac  I  low- 
land had  been  taken  possession  of  by  her  father,  had  entered 
into  a  mutual  agreement,  in  i860,  each  to  make  a  will  in  the 
other's  favor,  to  prevent  Mr.  Robinson's  getting  any  more  of 
the  Howland  property.  In  proof  of  this  compact  she  exhibited 
a  document,  consisting  of  two  sheets  of  paper — the  one  a  will 
made  by  Miss  I  lowland,  giving  her  whole  fortune  to  her  niece, 
and  the  other  a  declaration  of  the  reasons  for  making  it,  cor- 
responding with  Miss  Robinson's  statement.  There  was  also  a 
duplicate  of  this  latter  paper.  Her  bill  of  complaint  set  forth 
that  Miss  Howland's  will  of  1863  and  the  codicil  to  it  were  in 
violation  ol  this  compact,  and  should  therefore  be  declared 
void. 

MiaS  How  land's  executors,  under  the  latter  will,  defended 
the  suit,  not  alone  on  legal  grounds,  which  were  finally  ad- 
judged to  be  sufficient,  but  on  the  more  serious  assertion  that 
the  signatures  purporting  to  be  the  signatures  of  Sylvia  Ann 
Howland  to  the  declaration  of  mutual  agreement  and  its  du- 
plicate, produced  by  her  niece,  were  forgeries. 


DOCUMENTS.  441 

from  that  of  the  supposed  writer,  an  acquaintance  with 
which  has  been  formed  by  means  extraneous  to  that 
document.     This  is  a   species   of  circumstantial  real 

The  trial   of  the  cause  was,  as  may  be  supposed  from  the 
amount  of  money  and  the  scandal  involved,  long  and  stoutly 
contested.      Miss  Robinson,  who   in   the   meantime  had  been 
married  to  Mr.  Edward  H.  Green,  was  the  principal  witm 
in  her  own  behalf.     Her  story,  as  she  tells  it.  reads  not   nnl 
a  chapter  from    a  sensational  novel.     She  describes  a  visit  to 
her  aunt  in  i860,  picturing  her  as  an   invalid   and   a  helpli 
old  woman,  surrounded   by  nurses  looking  constantly  for  lier 
death    and    their    own    expected    legacies.       She    tells   of   her 
aunt's  indignation  at  the  way  in  which  her  father  had  taken 
her  mother's  money,  and   how,   in   1        equence,  the  alle{ 
agreement   was    determined   on.       The   two  women    sat    down, 
and,  with  the  help  of  a  slate  and  an  old  form  of  will  drawn 
a  lawyer,  concocted,  alter  several   days'  Labor,  a  will  ■    ■ 
Miss  Robinson  the  whole  of  Miss  I  low  land's  property.     This 
will,  however,  was  not  then  executed. 

In  January,  [862,  the  matter  again  came  up,  the 
again  called   into  requisition,  and  the  declaration  ol  reasons 
made  out  in  duplicate.      The  will  drafted  in  1860  was  then 
cxe.  uted,  with  a  change  of  date  to  1862,  and  the  two  duplicate 
de<  larations  signed,  one  ol  them  atta*  bed  to  the  will,  and  the 
other  retained   by  the  niei         The  will   and  the  dcclaral 
were  enclosed   in  a   white  envelope  and  put  away,     In  - 
after   Mi       Howland'     death,    Mi      Robinson  01    Mrs.  i  rreen 

,,,  hed  lor  this ,  nvelope,  and  found  it  among  Mi  Howlan 
papers,  at  the  ame  time  with  the  lat<  r  will  whi<  h  she  thou 
to    el  a  side. 

The  exe<  utoi  ;,   on   the  other  hand,  contended  that    N' 
Howland   never  signed   the  dupli<  ate  de<  laratio 
by  Mi     '  rn  en,  but  that  Mi     G        1  had  forged  Ik 
bj  tracing  them    from  th<  iturc  to  the  w  ill  to  w  hi<  h  1 

laration   refei  ,  and  whi<  h  th<  y  admit    to  be 
I   being  su   1  1      led  bj  th<   lat<  1  one  lh< 
ing.     'Ih.ii  ground  foi  making  this  -  haige  wai ,  th  tl 
signature    ar.  "  >'  othcr<  ul'"  h 

possibly  be,  il  they  were  written,       I     )  purport  to  I 
by  Mi      I  lowland  hi  1  ftei    '■'   ' 

On  thispoinl  there  w<  1 
ined,  and4  elaborate  argumi  1 
a  celebrated  mathematii  ian.Prot   P. 


442  INSTRUMENTS    OF    EVIDENCE. 

evidence,  (£)  and,  like  other  species  of  circumstantial 
evidence,  is  not  secondary  to  direct.  Thus  evidence 
of  the  nature    in  question  is  perfectly  receivable,  al- 

{b)  2  Benth.  Jud.  Ev.  460. 

that  the  odds  are  2,866,000,000,000,000,000,000  to  1  that  a  human 
being  could  not  write  his  name  three  times  so  exactly  alike  as 
the  three  alleged  signatures  of  Sylvia  Ann  Howland.  A  large 
number  of  experts  in  writing  and  engraving  testified  that  the 
two  signatures  to  the  duplicate  declaration  were  actually  copied 
from  the  genuine  signature  by  placing  the  latter  against  a 
window  pane,  and  writing  the  forgcties  over  it  in  pencil,  and 
then  tracing  the  pencil  marks  in  ink.  Mr.  John  E.  Williams, 
President  of  the  Metropolitan  Bank  said  that  he  had  no  doubt 
of  the  spuriousness  of  the  signatures,  and  other  witnesses 
were  equally  positive. 

In  rebuttal  of  this  formidable  evidence  Mrs.  Green's  coun- 
sel brought  forward  a  number  of  instances  in  which  confessedly 
genuine  signatures  were  as  nearly  identical  in  appearance  as 
the  three  in  dispute — among  them  some  of  the  late  John 
Quincy  Adams.  Even  genuine  signatures  of  Sylvia  Ann 
Howland  herself  were  shown,  which,  when  placed  over  one 
another,  were  as  nearly  alike  as  the  alleged  forgeries.  Prof. 
Agassiz  declared  that  he  had  examined"  the  latter  with  the 
microscope,  and  could  find  no  signs  of  tracing  or  painting  of 
ink  over  lead-pencil  marks.  Others,  writing  teachers  and  en- 
gravers, asserted  their  belief  that  the  signatures  were  genuine. 

The  Court  ultimately  escaped  a  decision  of  this  perplexing 
question  by  deciding  that  even  if  the  signatures  were  genuine, 
the  agreement  to  which  they  were  affixed  was  void.  Mrs. 
Green  subsequently  withdrew  her  appeal. 

in  Howland  v.  Taylor,  known  as  the  Taylor  Will  Case, 
a  question  as  to  the  forgery  of  the  alleged  testator's  signa- 
ture was  very  fully  tried,  and  experts  testified  as  follows  : 

Mr.  Southworth,  an  expert,  "  1  make  as  thorough  and  system- 
atic an  analysis  as  I  can  make,  andjudge  of  handwriting,  not  bv 
the  genera]  effect,  mechanical  effect,  but  by  the  combination 
of  characteristics  which  the  writer  himself  does  not  usually 
observe,  and  which,  perhaps,  he  does  not  know;  the  hand 
being  a  machine  not  subject  to  the  will,  because  a  person  may 
have  a  will  to  write  a  very  handsome  hand,  and  not  yet  be 
able  to  do  it. 

"  The  hand,  when-set  going,  makes  involuntarily  the  marks, 
while  the  eye  is  looking  upon  the  paper;  an  effort  to  make  a 


DOCUMENTS.  443 

though  the  writer  of  the  supposed  document  is  not 
examined  to  say  whether  he  wrote  it ;  (V)  and  this 
even  if  he  were  actually  present  in  court ;  although  the 

(c)  R.   v.    Hughes,   2    East,    P.    C.      Bank    Prosecutions,    R.  &     R.    C.    C, 
1002  ;    R.    v.    McGuire,    Id.  ;     The      37S. 

single  letter  would  be  a  very  unnatural  movement  of  an 
ordinary  writer,  while  his  off-hand  movement  when  he  is  not 
thinking  about  it,  will  be  the  natural  movement  of  the  hand, 
and  will  contain  the  natural  characteristics  of  the  hand. 

"The  hand  when  put  on  and  making  two  or  three  letters  in 
succession,  without  taking  it  up,  in  ordinary  writing,  will 
measure  off  from  parts  of  letters  to  the  next  parts  of  letters, 
until  it  is  taken  up  ;  a  sort  of  a  gauge  running  like  a  machine 
sometimes  larger,  sometimes  smaller,  but  having  the  general 
angles  and  curves;  that  is,  a  line  hand  placed  inside  of  a 
coarser  hand,  the  lines  will  seem  to  be  parallel;  enlarge  a 
very  line  hand  tip  to  a  very  coarse  hand,  and  i!  there  is  a  right 
angle,  it  will  remain  a  right  angle;  if  there  is  a  circle,  it  will  still 
remain  a  circle,  and  everything  will  maintain  the  same  paral- 
lelisms. So  that  take  any  person's  ordinary  writing  and  split 
through  it,  and  lay  one  half  under  the  oilier  half,  and  there 
will  be  movements  like  parallel  movements,  aol  straight,  like 
railroad  Hacks,  hut  parallel,  so  that  when  one  curves  the 
other  will  curve;  that  is  taking  the  same  previous  and  follow- 
ing joinings." 

Joseph  E.  Paine,  an  expert:  "The  signature  'James  B. 
Taylor '  to  this  don  1  men  1  [al  Leged  will  |  is  characterized  in  the 
I'm  h  plat  e  by  a  marked  degree  "I  regularity  in  the  movements, 

running    parallel    in    most    instances    with    each  Other,  SO  as  to 
give  a  sort  of  mathematical   or  mechanical   form;  and  in  the 
nd  place  by,  in  two  or  three  instaqces,  slow  motion       It 
is  a  slowly  written     ignature,   written   with  greal  care. 

"All  the  movements  indicate  a  eon  trained  motion  of  the 
hand  movement,  none  oi  the  movemenl  •  xtend  beyond  the  u  t 
u\  1  he  fingers  and  the  wrist,  in  my  judgment,  e:  cepl  1  he  flou'- 
ish  underneath,  whii  h  mighl  require  the  whole  arm  movei 

'I   here     \Ve|  e      five     e\hil>ll    .    ill    I  he    .   .1    ,.•    |   1  I 1 1 1  , ,  I  1 1  I  I  |j  1        ,    •  n.n 

of  Mr.  Taylor  proved  and  i  om  eded  to  be  genuine.     Mr.  Pa 
analyzed   these  signatures,  and  stated  thai  they  contained  no 
charai  teri  ti<  i  o\  i  he    Will  signature,  and  thai   i  h 
to  the   Exhibits  and  the  Will  signature  i  ould  nol  have  1"  en 


444  INSTRUMENTS    OF    EVIDENCE. 

not  calling  him  would  of  course   be  matter  of  strong 

observation    to    the  jury.     A    document    wholly    in 

the  handwriting  of  a  party  is  said  to  be  an  autograph 

written  by  the  same  person  (Fol.  1763).  As  to  Exhibit  "  D," 
December  10th,  1S70,  he  testified  : 

"There  is  no  slow  motion  in  it,  it  is  written  as  fast  as  the 
other  [Exhibits],  and  is  apparently  an  off-hand,  natural  sig- 
nature ;  it  has  that  appearance  in  my  judgment.  It  is  by  no 
means  a  beautiful  handwriting;  there  are  no  curves  or  move- 
ments that  make  it  a  graceful  writing." 

In  regard  to  Exhibit  "  C,"  December  16th,  1870,  he  testifies, 
it  "slightly  differs  from  Exhibit  '  D,'  December  19th,  1870, 
but  they  are  those  slight  differences  that  occur  perpetually 
in  all  signatures,  and  which  defy  almost  the  subtleties  of  lan- 
guage to  describe  them  ;  but  they  are  essentially  the  same 
movements  in  detail." 

As  to  Exhibit  "  E,"  December  19th,  1870,  lie  testifies  as 
follows:  "  It  differs  from  Exhibits  'D  '  and  '  C  '  in  this,  that 
the  capital  letters  'J,'  '  B,'  and  '  T  '  are  shorter  than  those  in 
the  other  signatures.  The  other  differences  are,  in  my  judg- 
ment, non-essential — those  that  are  usual,  and  which  I  expect 
to  find  always   in   the  signatures  of  any  man." 

In  regard  to  Exhibit  "  B,"  December  16th,  1870,  he  testi- 
fies, it  "is  a  very  hastily  made  signature,  and  imperfect  in 
many  particulars  ;  nevertheless  the  characteristics  are  gene- 
rally the  same  as  in  the  other  exhibits."  ..... 
"  In  these  Exhibits  the  movements  seem  to  me 
to  be  natural,  free,  regular  movements  of  the  hand;  taking 
them  altogether  they  present  the  same  characteristics,  move- 
ment, and  action,  and  seem  to  be  as  free  and  natural  and  easy 
as  belongs  to  that  hand  to  be  (or  did  belong  to  it),  differing  in 
this  respect  from  the  signature  to  the  will,  which  has  a  sort  of 
mechanical  expression,  is  not  free,  but  has  a  made-up  move- 
ment, slow,  and  looks  like  a  copy  made  by  a  child   at    school. 

"  O.  State  whether,  in  the  signature  to  the  will,  there  are 
any  of  the  characteristics  which  exist  in  the  signatures  to  the 
five  exhibits  shown  you  to-day? 

"A.  No  characteristic  movement  in  those  five  signatures 
is  repeated  in  the  signature  to  the  will,  nor  anything  similar 
to  it.  in  my  judgment;  not  a  solitary  one  is  to  be  found." 

The  witness's  opinion  that  the  will  signature  was  not,  and 
could  not  have  been  written  by  the  same  person  who  wrote 
the  exhibits,  is  not  founded  on  the  fact  that  the  signatures  to 
such    exhibits   vary   from    the    signature  to  the  alleged  will 


DOCUMENTS.  445 

or  holograph;  (V)  where  it  is  in  the  handwriting  of 
another  person  and  is  only  signed  by  the  party,  ihe 
signature    may    be    called    "onomastic;"    where    it 

{d)  2  Benth.  Jud.  Ev.  459,  460,  461. 

The  signatures  to  the  exhibits  vary  ;  in  fact  any  two  signatures 
made  by  the  same  person  will  contain  variations.  The  witness 
testifies  on  the  subject  as  follows  : 

"O.  I  will  ask  you  whether,  in  your  judgment,  any  person 
ever  writes  his  signature  twice  precisely  alike? 

"A.   Never. 

"  I  should  infer  from  the  writing  that  Mr.  Taylor  held  his 
pen  pointing  rather  off  from  the  right  shoulder  than  imme- 
diately over  it  or  toward  it ;  that  the  pen  in  the  other  case,  in 
the  case  of  the  signature  to  the  will,  was  held  more  pointing 
over  the  shoulder." 

Mr.  Pai ne's  evidence  proved  two  things.  1st.  That  the 
writer  of  the  will  signature  held  his  pen  differently  from  Mr. 
Taylor,  and  that  his  movements  in  writing  were  totally  differ- 
ent ;  2nd.  That  the  will  signature  has  not  "  nut  a  solitary  one  " 
of  the  characteristics  of  Taylor's  genuine  signature;  3rd. 
That  the  handwriting  of  the  will  signature  and  the  body  of 
the  will,  is  the  same  in  every  characteristic,  and  was  written 
by  the  same  person,  and  therefore  the  will  signature  could  not 
have  [■•■en  written    by  Taylor. 

Albert  S.  Southworth,  an  expert,  agreed  with  Mr.  Paine  in 
the  particulars  above  set  forth.  His  analysis  of  the  live  ex- 
hibits written  and  signed  by  Taylor  will  be  found  ;it  folios 
1.  ;;  to  1851.  After  giving  the  characteristics  of  the  signa- 
tures to  the  exhibits,  he  testified  as  follows:  "Q.  Do  any  of 
tin-  (  li.n.K  teristics  you  have  spoken  of  in  the  signatures  to  the 
exhibit  ;  von  have  lei  testified  about,  appeal    in  the  signature 

to  the    \\  ill  ? 

'•A.  Not  one."  Mi-.  Southworth's  anal)  ii  oi  the  hand- 
writing of  the  pretended  will  and  the  signature,  •Jami  B. 
•|  aylor,'  u  ill  be  found  at  folios  1798  to  1 1  3  \.  I  [e.  as  well 
as  Mi  Paine,  demon  trated  that  the  hand  writing  of  the  body 
of  the  will  and  the  signature, '  Jam e  B  faylor,' are  one  and 
the  same,  and  musl  have  been  written  by  one  and  the  same 
person.  Mr.  Paine,  as  already  shown,  pointed  out  some 
two  hundred  peculiarities,  coincidences,  and  characteristic 
between  the  handwriting  of  the  body  ol  the  will  and  th< 
signature  James  B.  Taylor.  Southworth  pointed  oul  a 
great   number  of   characteristics   which    the    signature    and 


446  INSTRUMENTS    OF    EVIDENCE. 

is  signed   by  a   cross   or   other   symbol,   "  symbolic." 

233.   Abstractly    considered,    it    is   clear    that   a 

2  Benth.  Jud.  Ev.  459,  460,  461. 

the  handwriting-  of  the  body  of  the  will  possess  in  common. 
This,  which  he  said,  could  not  be,  unless  they  were  written  by 
the  same  person.  Mr.  Southworth  testified  that  the  signature 
to  the  will  could  be  placed  over  words  in  the  body  of  the  will, 
so  that  it  could  be  seen  that  the  letters  in  the  signature  were 
exactly  tire  same  in  every  characteristic  as  the  corresponding 
letters  in  the  body  of  the  will.  He  said:  "This  can  be  proved 
by  placing-  the  will  agiinst  the  sunlight,  against  the  window  ; 
the  paper  is  so  transparent  that  the  lines  in  the  bottom  of  tlic 
word 'James'  [of  signature  to  will]  can  be  run  against  the 
bottom  of  a  great  many  words  up  and  down  the  page  oppo- 
site." This  experiment  Mr.  Southworth  made  in  court  before 
the  surrogate,  and  it  amounted  to  a  demonstration  that  the 
handwriting  of  the  body  of  the  alleged  will  and  the  signature 
James  B.  Taylor  were  the  same.  The  letters  in  the  signature 
which  lay  over  corresponding  letters  in  the  body  of  the 
alleged  will  were  the  same  in  respect  to  curves,  they  being 
"  parallel  with  each  other,  like  two  rails  curved — the  curve  of 
a  railroad."  They  were  the  same  in  respect  to  "  all  of  the 
movements;"  the  witness  said  "the  outside  movements  are 
all  parallel,"  .  .   .  "  the  strokes  are  all   parallel." 

Witness,  while  he  had  the  will  against  the  window,  pointed 
out  the  coincidences  and  characteristics  in  common  between 
various  letters  in  the  signature  "  James  B.  Taylor,"  and  cor- 
responding letters  in  the  body  of  the  alleged  will.  The  wit- 
ness testified  that  if  each  of  the  signatures  of  James  B.  Tay- 
lor to  the  exhibits  was  laid  over  the  will  signature,  it  could 
be  seen  that  they  would  not  correspond  in  movements,  curves 
and  characteristics. 

The  win, ess  testified,  that  if  the  same  experiment  were 
performed  with  reference  to  any  two  of  the  signatures  to  the 
exhibits,  it  could  be  seen  that  they  corresponded  in  their  char- 
acteristics and  were  written  by  the  same  person.  The  wit- 
ness said,  "  If  this  experiment  were  performed  witli  the  gen- 
uine signatures,  they  would  exhibit  successive  curves,  charac- 
teristic curves,  curves  belonging  to  that  hand,  connected 
successively,  making  a  combination  of  characteristics,  thai 
they  would  present  the  same  angles. 

u  O.  Showing  that  they  were   written  by  the  same  hand  ? 


DOCUMENTS.  447 

judgment  respecting  the  genuineness  of  handwriting, 
based  on  its  resemblance  to  or  dissimilarity  from  that 
of  the  supposed  writer,  may  be    formed    by    one  or 

"  A.   Showing  that  the  same  machine  made  them." 

The  witness  testified,  that  if  any  of  the  genuine  signatures 
to  the  exhibits  were  laid  over  the  will  signature,  it  would 
appear  that  the  letters  in  the  one  had  no  characteristics  in 
common  with  the  letters  of  the  other;  that  they  had  "  no  re- 
semblance whatever,  no  characteristics  [in  common]  not  the 
slightest."  That  they  had  not  "  the  same  turn  at  all,'' and 
would  not  go  together;  that  the  characteristics  which  mark 
identity  of  handwriting  were  totally  different. 

The  testimony  of  Southworth  and  of  Paine  shows  that 
the  genuine  signatures  of  Taylor  to  exhibits  in  evidem  <•.  have 
not  so  much  as  a  single  characteristic  in  common  with  the 
alleged  will  signature.  Their  testimony  also  shows  that  every 
one  of  the  characteristics  of  the  will  signature  appear  over 
and  over  again  in  the  body  of  the  alleged  will.  The  coinci- 
dences, the  characteristics  in  common,  between  the  handwrit- 
ing in  the  body  of  the  alleged  will  and  the  signature  "  James 
B.  Taylor,"  are  counted  by  hundreds. 

George  Stimpson,  an  expert,  called  for  the  respondent, 
said  that  the  person  who  wrote  the  will  was  laboring  under 
restraint,  he  "  found  it  difficult  to  manage  it  |  tin-  pen  |." 

lie  says  that:  "It  indicates  a  slow  movement  in  making 
the  particular  letter. 

"Q,   Would  not  it  indicate  a  slow  and  lined  motion 

of  the  pen  ? 

"A.  (  Vi  tainly,  of  rmirsc. 

■  [).  Would  in  it  it  indicate  an  unnatural  motion  "i  tin-  pen, 
as  contradistinguished  from  a  free  and  natural  motion  oi 
it? 

"A.  Why,  of  course,  a  free  and  natural  motion  would  be  a 
cont  inuous  st  roke." 

lb-  in  res]  ie<  I   t<>  the  "  :i  "  1  if  -  1  ■  in  will  signa- 

ture, the  pre    ure  "t  pen  continues  the  same  "from  t 
until  that  stroke  ends  at,  or  near  the  ba  e  line." 

lb-  says  in   respect    to  the  "a"  oi    Exhibit   "D,"  pen  in- 
creases in  pre    ure  until  it  ends  about   two   thirds  of  the  ■■■ 
down,  "then  diminishes  in   pre    no-,  and  comes  to  the  right, 

minating  in  a  hair  stroke." 

Witness  tried  to  explain  by  saying  th<  tun     [to  1 

dibits  and  the  will]  could  not   have  been  written  with  the  '-:unc 

pen.     "The  person  make-  his    letters  apparently  different." 


443  INSTRUMENTS    OF    EVIDENCE. 

more  of  the  following  means  : — ist,  A  standard  of  the 

general  nature  of  the  handwriting  of  the  person,  may 

be  formed  in  the  mind  by  having,  on  former  occasions, 

Me   says:    "The    gentleman   who    wrote  the  signature   [will 
signature]  was  under  considerable  restraint." 

In  reference  to  the  difference  in  pen  pressure  between  ex- 
hibit signatures  and  the  will  signature,  he  says:  "The  signa- 
ture of  the  will  appears  to  have  been  written  with  a  different 
pen  from  what  I  find  that  he  may  have  used  in  the  ex- 
hibits." 

He  says  that  using  a  different  pen  would  make  a  difference 
in  the  body  strokes  of  the  signature,  with  reference  to  the  will 
and  signatures  in  the  exhibits."  Previously  this  witness  had 
said  there  was  no  difference  in  pen  pressure. 

In  reference  to  the  first  body  stroke  of  the  "  m,"  lie  says, 
if  the  hair-stroke  stuck  through  it,  it  would  show  that  the  pen 
was  taken  off.  In  regard  to  the  first  body  stroke  of  the  "  m" 
in  the  will  signature,  he  says  the  ragged  appearance  is  dis- 
cernible about  one-third  of  the  way  down.  He  finally  admits 
that  if  a  person  wrote  with  a  constrained,  slow  motion,  the 
stroke  would  be  more  ragged  than  if  he  wrote  without  slow 
motion. 

In  regard  to  exhibit  "D,"he  admits  the  body  strokes  of 
the  "m  "  are  unlike  the  body  strokes  of  the  "  m  "  in  the  will 
signature.  He  thinks  the  exhibit  signatures  were  written 
with  a  softer  pen  than  the  will  signature.  The  witness  is  very 
explicit  on  this  point,  and  testifies  as  follows: 

"O.  What  kind  of  pen  do  you  think  the  will  signature 
was  written  with  ? 

"  A.  I  say  I  think  it  was  written  with  a  stiffer  pen,  a  pen  he 
could  not  wield  as  easily  as  he  could  the  one  used  when  he 
was  writing  the  other  signature." 

He  thinks  there  was  a  very  great  difference  between  the 
pen  that  wrote  the  will  signature,  and  the  pen  that  wrote  the 
exhibit  signatures. 

lie  thinks  that  when  the  will  signature  was  written,  he 
[the  writer  >A'  the  signature  to  the  will]  was  laboring  under  a 
difficulty  with  the  pen  at  the  time  when  he  wrote  the  signa- 
ture to  the  will." 

He  testifies  as  follows: 

"Q.  You  have  no  doubt  about  that,  that  the  person  who 
wrote  the  will  signature  was  laboring  under  a  difficulty  in 
connection  with  the  pen  when  he  wrote  that  signature? 

"  A.   I  have  no  doubt  at  all. 


DOCCMEXTS. 


449 


observed  the  characters  traced  by  him  while  in  the  act 
of  writing,  with  which  standard  the  handwriting  in 
the  disputed  document  may,  by  a  mental  operation, 

■■[).  And  that  it  was  not  written  with  the  natural  motion 
and  freedom  of  the  writer? 

"  A.  Well,  it  was  not  written  with  the  freedom  that  he 
generally  had,  on  account  of  the  pen  he  was  using;  that  is 
my  estimation." 

This  witness,  Jackson,  to  the  will  in  question,  who  testified 
that  he  signed  his  name  as  a  witness  with  the  same  pen  which 
the  alleged  testator  used,  admitted,  in  reference  to  the  staff  of 
"T"  of  will  signature,  that  it  starts  with  heavy  pressure,  and 
is  unlike  exhibit  signatures  in  that  respect.  He  admits  that, 
with  reference  to  the  "T  "of  will  signature,  the  descent  is  on  the 
right  hand  side  of  the  staff.  He  admits  that  if  a  person  gen- 
erally made  a  "T"  with  the  descent  on  the  other  side  of  the 
staff,  it  would  be  an  important  point  in  determining  his  hand- 
writing, lie  admits,  also,  that  a  person  would  be  very  likely 
to  be  uniform  in  this  particular.  Mr.  Taylor,  whenever  he 
made  the  kind  of  "  T  "  sought  to  be  imitated  in  the  will  signa- 
ture, uniformly  made  the  staff  of  the  "T  "  in  a  particular  way, 
directly  opposite  to  the  way  it  is  made  in  the  signature  to  the 
will. 

This  witness  says,  in  respect  to  the  will  signature,  that  the 
"a"  in  "Taylor"  is  better  formed  than  the  "a"  in  "James." 
He  states  as  follows: 

"().  A  letter  more  perfectly  formed  in  what  respect? 

"A.  Well,  lie  seems  to  have  gol  a  little  more  used  to  the 
pen — seems  to  be  driving  it  along  better. 

"Q.  State  in  what  particular  the  shape  is  more  perfect ? 

"A.  The  latter  part  of  the  second  is  not  quite  as  ragged  as 
in  the  first  one. 

"  ( ).  Ii  looks  as  il  the  writer  wrote  with  more  smoothness 

when  he  got   to  the  •,<;,  ond  "  a  "  ? 
"  A      \ 

"  ().  As  if  he  had  a  little  better  command  of  the  pen  ? 
"A.  A  little  niore  used  to  it.  the  same  as  any  one." 
'I  he  genuineness  ol  the  signature  offered  as  a  test  must   be 
distinctly   proved   (Depue  v.  Place,  7  Pa.   St.  428),     Writings 
submitted  toajury's   inspection   should  be  read  in  evidence 
\     1   general  rule,  all  evidence  is  addressed  to  the  hearing  "t 
the  jury,  and   not    to  their  sight    (Outlaw  v.  Hurdle,  1   [ones 
1  V  C.)  L.  150;  s.  P.  Otey  v.  Hoy,  3  Id.  407).     A   comparison 
of  the  signature  to  a  writing  with  other  writings  ol  the  party, 


450  INSTRUMENTS    OF    EVIDENCE. 

be  compared.     2dly,  A  person  who  has  never  seen  the 

supposed   writer    of  the  document  write,  may  obtain 

a  like  standard  by  means  either  of  having  carried  on 

proved  to  be  genuine,  is,  in  Massachusetts,  evidence  to  prove 
the  signature  (Homer  v.  Wallis,  n  Mass.  309;  Hall  v.  Huse, 
10  Id.  39;  Salem  Bank  v.  Gloucester  Bank,  17  Id.  1;  Moody 
v.  Rowell,  17  Pick.  (Mass.)  490;  Richardson  v.  Newcomb,  21 
Id.  315;  and  so  in  Iowa;  Baker  v.  Mygatt,  14  Iowa,  131). 
Where  the  prosecutor  in  a  criminal  case,  pending,  procured 
the  defendant  to  write  in  his  presence,  to  become  acquainted 
with  his  handwriting,  keld,  that  such  prosecutor's  testimony, 
as  to  the  defendant's  writing,  thus  obtained,  was  admissible  at 
the  trial  (Reid  v.  State,  20  Ga.  681).  Evidence  of  other 
writings  proved  by  witnesses  and  also  of  witnesses,  is  admis- 
sible to  show  that  the  peculiarities  of  an  alteration  are  such 
as  the  party  frequently  used  in  a  person's  ordinary  hand- 
writing (Smith  v.  Fenner,  1  Gall.  170).  Deeds  cannot  be 
proved  by  comparison  of  handwriting  of  the  grantor  and  of 
the  witnesses;  but  the  signature  of  the  justice  taking  the  ac- 
knowledgment may  be  so  (Welch  v.  Gould,  2  Root  (Conn.)  287  ; 
and  see  Moore  v.  Andrews,  5  Port.  (Ala.)  107  ;  Stewart  v. 
Connor,  9  Ala.  803  ;  Union  Bank  v.  Knapp,  3  Pick.  96  ;  North 
Bank  v.  Abbott,  13  Id.  465  ;  Welsh  v.  Barrett,  15  Mass.  380; 
Washington  Bank  v.  Prescott,  20  Pick.  339  ;  Shore  v.  Wiley, 
18  Id.  558;  Love  v.  Payton,  1  Overt  (Tenn.)  225  ;  Hay  v.  Kra- 
mer, 2  Watts  &  S.  137;  Alter  v.  Berghaus,  8  Watts,  77, 
Holmes  v.  All,  1  Mo.  419;  Brown  v.  Lincoln,  47  N.  II.  468; 
Randolph  v.  Loughlin,  48  N.  Y.  456  ;  Medway  v.  United 
States,  6  Ct.  of  CI.  421  ;  Bragg  v.  Coldwell,  19  Ohio  St.  407  ; 
Clayton  v.  Sicbert,  3  Brews.  (Pa.)  176).  While  the  American 
decisions  are  far  from  uniform  with  respect  to  the  admission 
of  papers  irrelevant  to  the  record,  for  the  sole  purpose  of 
affording  a  standard  of  comparison  of  handwriting,  yet  the 
weight  of  authority  is  against  such  a  practice,  especially  when 
the  genuineness  of  the  standard  introduced  may  itself  come 
in  question  (Clark  v.  Rhodes,  2  Heisk.  (Tenn.)  206  ;  and  see 
the  Parish  Will  Case,  5  vol.  Edition  ;  Commissioners  v. 
Hanion,  1  Nott  &  Mc.  (S.  C.)  554  ;  Clark  v.  Fre&man,  25  Pa. 
St.  133;  Taylor  v.  Sutherland,  24.  Id.  2>?>Z'i  Cabarga  v.  Seeger, 
17  Id.  514;  Magee  v.  Osborne,  32  N.  Y.  669;  Dubois V.  Baker, 
30  Id.  355  ;  Kelly  v.  Paul,  3  Gratt.  191  ;  Shepheard  v.  Frys, 
Id.  442  ;  United  States  v.  Keen,  1  McLean,  429  ;  James  v. 
Wharton,  3  Id.  492;  State  Bank  v.  Whitelow,  6  Ala.  135; 
McCaskle  v.   Amarine,  12    Id.    19;  Hopper  v.  Ashley,  15    Id. 


DOCUMENTS.  451 

written  correspondence  with  him,  or  having  had  other 
opportunities  of  observing  writing,  which  there  was 
reasonable  ground    for   presuming   to    be    his.     3dly, 

457;  Strung  v.  Bower,  #7  Id.  706;  Robinson  v.  Johnson,  1 
Mo.  2^3;  Kenncv  v.  Flynn,  2  R.  I.  319;  Chandler  v.  Le  Bar- 
ron, 45  Me.  524;  Martin  v.  Maguire,  7  Gray  (Mass.)  177). 
Impressions  of  writings,  taken  by  means  of  a  press,  and  dupli- 
cates made  by  a  copying  machine,  are  not  originals,  and  can- 
not be  used  as  standards  of  comparison  (Commonwealth  v. 
Eastman,  1  Bush.  (Mass.)  1S9).  After  competent  evidence 
has  been  introduced  to  prove  handwriting,  it  may  be  corrobo- 
rated by  comparison  with  other  writings  concerning  which 
there  is  no  question  (Baker  v.  Haines,  6  Whart.  (Pa.)  2S4  ; 
Clark  v.  YVyatt,  15  Ind.  271  ;  Myers  v.  Toscan,  3  N.  II.  47  ; 
Bank  of  Lancaster  v.  Whitehall,  10  Serg.  &  R.  (Pa.)  no; 
Bank  of  Pennsylvania  v.  Ilalderman,  1  Pa.  161;  Travis  v. 
Brown,  43  Pa.  St.  9  ;  Haycock  v.  Greup,  57  Id.  43S ;  Boman 
V.  Plunkett,  2  McCord  (S.  C)  518;  Robertson  v.  Miller,  r 
M(  Mull  (S.  C.)  120).  Although  handwriting  cannot  be  proved 
by  comparison  of  hands,  yet  when  different  instruments  are 
properly  in  evidence  for  other  purposes,  the  handwriting  of 
such  instruments  may  be  compared  by  the  jury,  and  genuine 
tmulation  of  the  handwriting  in  question  be  inferred 
by  such  comparison  ( Ellis  v.  People,  21  How.  (N.  Y.)  Pr.  356  ; 
Henderson  v.  Hackney,  16  Ga.  521;  Williams  v.  Drexel,  14 
M.l.  56;  Rogers  v.  Shaler,  Anth.  (N.  Y.)  109;  Van  Wyck  v. 
M<  Into  h,  14  \.  Y.  (1  Kern.)  439;  Dubois  v.  Baker,  40  Barb, 
(N.  Y.)  556).  But  consult  Little  v.  Beazly,  2  Ala.  7  13;  State 
v.  Givens,  5  Ala.  747  ;  Bishop  v.  State,  30  Ala.  34;  .lumpen/ 
v.  People,  2]  III.  375;  Kernin  v.  Hill,  37  111.  209;  Shank  v. 
Bu  8  Ind.  19;  McAllisterv    McAllister,  7  B.  Mon.  (K)  1 

>;  Hawkins  v.  Grim<    .  [3  Id    158;  Woodward  v.  Spiller,  1 
Dana   (Ky.)    179;  Jack    >n    v.    Phillips,  9  Cow.    (N.    V .1  94; 
People  v.  Spooner,  1  Den.  (N.  V.)  343;  Hanley  v.  Gandy, 
Tex.  211;   Pierce  v.  Northey,  m  VVis.  9;  Tayloi  v.  ( Jrowning- 
shield,  5  N.  Y.  Legal  Observer,  209. 

A    writer  in   Applcton's  Journal,  New   York,  October    td, 
,,  refei  1  to  a  curiou    en  eoci  ui  1  ing  in  F  ram  e  «  here  a  I 
tator  bequeathed  to  his  two   nephews  "a   chacun  deux    mille 
cenl    fi  Between    the  d  and  the  eux,  a   minute   mark 

urred,  which,  ii  made  by  the  pen,  would  cause  the  beque  1 
to  read  "  a  chacun   d'eux    mille  cent   francs,"  to  each  one  of 
them  one  hundred  thousand  fram  s,  whereas  if,  a  •  the  le 
1  laimed,  the  mark  was  not  made  by  the  pen  ol  the  writer,  but 


4?2  INSTRUMENTS    OF    EVIDENCE. 

A  judgment  as  to  the  genuineness  of  the  handwriting 
to  a  document,  may  be  formed  by  a  comparison  insti- 
tuted between  it  and  other  documents,  known  or  ad- 
mitted to  be  in  the  handwriting  of  the  party.  These 
three  modes  of  proof — the  admissibility  and  weight  of 
which  we  propose  to  consider  in  their  order — have 
been  accurately  designated  respectively,  "  Prsesumptio 
ex  visu  scriptionis ;"  "  Praesumptio  ex  scriptis  olim, 
visis  ;"  and  "  Prresumptio  ex  comparatione  scriptorum," 
or  "  Ex  scripto  nunc  viso."  (/") 

234.  The  rule  with  respect  to  proof  "  ex  visu  scrip- 
tionis "is  clear  and  settled ;  namely,  that  any  person 
who  has  ever  seen  the  supposed  writer  of  a  document 
write,  so  as  to  have  thereby  acquired  a  standard  in  his 
own  mind,  of  the  general  character  of  the  handwriting 
of  that  party,  is  a  competent  witness  to  say  whether  he 
believes  the  handwriting  of  the  disputed  document  to 
be  genuine  or  not.  (g)  The  having  seen  the  party 
write  but  once,  (//)  no  matter  how  long  ago,  (7)  or 
having  seen  him  merely  write  his  signature,  (/£)  or 
even  only  his  surname,  (/)  is  sufficient  to  render  the 
evidence  admissible :  the  weakness  of  it  is  matter  of 
comment  for  the  jury.  Where  a  person  who  cannot 
write  is  desirous  of  subscribing  his  name  to  a  docu- 
ment, another  person  writes  it  for  him,   which  signa- 

(/)  3  Benth.  Jud.  F.v.  598,  599.  (/)  R.  v.  Home   Tooke,  25    Ho.  St. 

(g )  De  la  Motte's  Case,  21  Ho.  St.  Tr.  71,  72  ;  Eagleton   v.  Kingston,  8 

Tr.    810;    Eagleton    v.    Kingston,    8  Ves.  474,  per  Lord  Eldon. 

Ves.  473,  474  ;  Lewis  v.  Sapio,  1  M.  &  (k)  Garrells    v.   Alexander,  4    Esp. 

M.  39;  Willman    v.  Worrall,   8   C.  &  37;  Willman    v.  Worrall,  8    C.  &    P. 

P.  3S0;  also  Garrells  v.  Alexander,  4  3S0. 

Esp.  37.  (/)  Lewis  v.  Sapio,  1   M.  &  M.  39 ; 

(A)  Willman  v.  Worrall,  8  C.  &  P.  overruling    Powell  v.  Ford,  2  Stark. 

380  ;  Phill.  &  Am.  Ev.  692.     See  also  164. 
Warren  v.  Anderson,  8  Scott,  384. 

was  a  mere  accidental  fly-speck  or  defect  in  the  paper,  the  be- 
quest became  "a  chacun  deux  mille  cent  francs,"  to  each  one 
two  hundred  thousand  francs. 


DOCUMENTS.  453 

ture  he  identifies  by  affixing  over  or  near  it  a  mark, 
usually  a  cross.  Here  it  is  obvious  the  difficulty  of 
proof  is  much  increased.  "In  the  symbolic  mode  of 
signature,"  observes  Bentham,  (;/*)  "  whatever  security 
is  afforded  by  the  two  other  modes  (viz.,  against  spu- 
riousness  pro  parte  as  well  as  in  toto  by  the  holo- 
graphic, against  spuriousness  in  toto  by  the  onomastic) 
is  manifestly  wanting :  a  cross  (the  usual  mark)  made 
by  one  man,  not  being  distinguishable  from  a  cross 
made  by  another,  the  real  part  of  evidence  has  no 
place.  Recognition,  viz.,  by  deportment,  is  the  only 
way  in  which  this  mode  of  authentication  can  be  said 
to  operate."  This  is  rather  too  broadly  stated.  Unless 
there  is  something  to  identify  the  mark  as  being  that 
of  a  particular  person,  the  evidence  seems  not  to  be 
admissible  ;  but  otherwise  it  is  impossible  to  distin- 
guish this  in  principle  from  any  other  form  of  proof 
ex  visu  scriptionis.  In  one  case,  (n)  in  order  to  prove 
the  indorsement  of  a  bill  of  exchange  by  one  A.  M., 
which  was  indorsed  by  mark,  a  witness  was  called, 
whe  stated  that  he  had  frequently  seen  A.  M.  make 
her  mark  and  so  sign  instruments,  and  he  pointed  out 
some  peculiarity.  Tindal,  C.  J.,  after  some  hesitation, 
admitted  the  evidence  as  sufficient,  and  the  plaintiff 
had  a  verdict.  In  a  court  of  equity  also,  where  it  was 
sought  to  prove  a  debt  due  by  a  deceased  person  to 
one  VV.  P.,  and,  to  prevent  the  debt  from  being  barred 
bv    the     statute     of    limitations,   receipts    lor    ini <  1  <    1 

were  produced  in  the  handwriting  ol  the  deceased, 
and  signed  with  the  christian  and  surname  <>i   W.  I'., 

having  a  cross  between  them;  and  an  affidavit  was 
produced  that  P.  was  a  marksman,  and  that  the  signs 
or  marks  on  those  documents  were   respectively  the 

\m)  2  BentU.  Jud.  Ev.  461.  516.     Sec  per  Parke,  B.  In   Saycr  ». 

(«)  George   v.  Surrey,  i    M.  &   M.      Glossop,  12  Jur.  465, 


454  INSTRUMENTS    OF    EVIDENCE. 

mark  or  sign  of  W.  P.  used  by  him  in  place  of  signing 
his  name;  Shadwell,  V.  C,  thought  the  proof  of  the 
signature  sufficient,  (o) 

235.  The  practice  with  reference  to  the  presump- 
tion "ex  scriptis  olim  visis"  is  thus  clearly  stated  by 
Patteson,  J.,  in  the  case  of  Doe  d.  Mudd  v.  Sucher- 
more  :  (/)  "That  knowledge  "  (scil.  of  handwriting) 
"  may  have  been  acquired,  by  the  witness  having 
seen  letters  or  other  documents  professing  to  be  the 
handwriting  of  the  party,  and  having  afterwards 
communicated  personally  with  the  party  upon  the 
contents  of  those  letters  or  documents,  or  having 
otherwise  acted  upon  them,  by  written  answers  pro- 
ducing further  correspondence,  or  acquiescence  by  the 
party  in  some  matter  to  which  they  relate,  or  by  the 
witness  transacting  with  the  party  some  business  to 
which  they  relate,  or  by  any  other  mode  of  communi- 
cation between  the  party  and  the  witness  which,  in 
the  ordinary  course  of  the  transactions  of  life,  induces 
a  reasonable  presumption  that  the  letters  or  documents 
were  the  handwriting  of  the  party,  evidence  of  the 
identity  of  the  party  being  of  course  added  aliunde, 
if  the  witness  be  not  personally  acquainted  with  him." 
The  number  of  papers,  however,  which  the  witness 
may  have  seen  in  the  handwriting  of  the  party  is 
perfectly  immaterial,  so  far  as  relates  to  the  admissi- 
bility of  the  evidence,  (q)  Nor  is  it  absolutely  neces- 
sary for  this  purpose,  that  any  act  should  be  done  or 

(o)  Pearcy   v.    Dicker,    13   Jur.  997.  v.  Fry,  R.  &   M.  90  ;   Layer's  Case,  16 

Baker  v.  Dening,  8  A.  &  E.  Ho.  St.  Tr.  205  ;  Gould  <'.  Jones,  1  W. 

94;  In   the   Goods  of   Bryce.  2  Curt.  lilac.kst.3S4;  Middleton  v.  Sand  ford ; 

325.  4  Camp.  34;  Parkins  v.  Hawkshaw,  2 

1/;  5   A.  &   E.  703,  730.     See  also  Stark.  239  ;  Greenshields  v.  Crawford, 

d    Ferrers   v.   Shirley,  Fitzg.  195;  9  M.  &  W.  314  ;  Batchelor  v.  Honey- 

Gary  v.  Pitt,  Peaked  Ev.  App.  xxxiv. ;  wood,  2    Esp.  714  ;  Murieta   v.  Wolf. 

Tharpe  v.  Gi>tmrne,  2  G.  &  P.  21  ;   K.  hagen,  2  ear.  &  K.  744. 

v.  Slaney,  5  G.  &  P.  213  ;  Harrington  (q)  Phil.  &  Am.  Ev.  693. 


DOCUMENTS.  455 

business  transacted  by  the  witness  in  consequence  of 
the  correspondence,  (r)  "  The  clerk,"  says  Lord  Den- 
man,  in  Due  d.  Mudd  v.  Suckermore,  (s)  "who  con- 
stantly read  the  letters,  the  broker  who  was  ever 
consulted  upon  them,  is  as  competent  to  judge 
whether  another  signature  is  that  of  the  writer  of  the 
letters,  as  the  merchant  to  whom  they  were  addressed. 
The  servant  who  has  habitually  carried  letters 
addressed  by  me  to  others,  has  an  opportunity  of 
obtaining  a  knowledge  of  my  writing,  though  he 
never  saw  me  write,  or  received  a  letter  from  me." 

236.  It  seems,  however,  that,  in  order  to  render 
admissible  either  of  the  above  modes  of  proof  of 
handwriting,  the  knowledge  must  not  have  been 
acquired  or  communicated  with  a  view  to  the 
specific  occasion  on  which  the  proof  is  offered.  (/) 
In  a  ease  where  the  question  turned  on  the  genuine- 
ness of  the  handwriting  on  a  bill  of  exchange, 
purporting  to  have  been  accepted  by  the  defendant, 
the  evidence  of  a  witness,  who  stated  thai  he  had 
seen  the  defendant  write  his  name  several  times 
before  the  trial-, — he  having  written  it  for  the  purpose 
of  showing  to  the  witness  his  tine  manner  of  writing 
it,  so  thai  the  witness  might  be  able  to  distinguish  it 
from  ili'  pretended  acceptance  t<>  the  bill, — was 
rejected  by  Lord  Kenyon,  .is  the  defendanl  might, 
through  design,  have  written  differentl)  from  his 
common  mode  of  writing  his  name.  («)  So  where, 
on  ;m  indictmeul  foi  sending  .1  threatening  letter,  the 
only  witn<  s  <  ailed  to  prove  thai  the  letter  was  in  the 
handwriting  <>f  the  accused,  was  a  policeman  who, 
after    the   lettei    had    been    received    and   suspicion 

(r)   [d.j  2    Mark.    Ev.   511.  '  '  Coleridge,  JJ„  in  Doe  d.  Mudd  t 

3rd  ed.  ! 

(s)   5  A.  &  E.  703.  740.  .   1    !     |..  i.j. 

(/)  See  the   judgments  of  Patte  on 


456  INSTRUMENTS     OF    EVIDENCE. 

aroused,  was  sent  by  his  inspector  to  the  accused  to 
pay  him  some  money  and  procure  a  receipt,  in  order 
thus  to  obtain  a  knowledge  of  his  handwriting  by 
seeing  him  write  ;  his  evidence  was  rejected  by  Maule, 
J.,  on  the  ground,  that  "  knowledge  obtained  for  such 
a  specific  purpose  and  under  such  a  bias,  is  not  such 
as  to  make  a  man  admissible  as  a  quasi  expert  wit- 
ness." {x) 

237.  It  has  been  made  a  question,  whether  a 
witness  who,  either  ex  visu  scriptionis  or  ex  scriptis 
olim  visis,  has  acquired  a  knowledge  of  the  hand- 
writing of  a  party,  but  which,  from  length  of  time, 
has  partly  faded  from  his  memory,  may  be  allowed, 
during  examination,  to  refresh  his  memory  by 
reference  to  papers  or  memoranda  proved  to  be  in 
the  handwriting  of  the  party.  In  one  case  a  witness 
was  allowed  to  do  so  by  Dallas,  C.  J.,  at  Nisi  Prius ; 
(jj/)  but  the  correctness  of  that  decision  was  denied 
by  Patteson,  J.,  in  Doe  d.  Mudd  v.  Suckermore;  {£) 
and  the  propriety  of  the  practice  may  fairly  be 
questioned. 

238.  We  now  proceed  to  the  third  part  of  this 
subject,  namely,  whether  and  under  what  circum- 
stances it  is  competent  to  prove  the  handwriting  of 
a  party  to  a  document,  by  a  comparison  or  collation 
instituted  between  it  and  other  documents  proved  or 
assumed  to  be  in  his  handwriting.  By  the  general 
rule  of  the  common  law,  such  evidence  was  not  re- 
ceivable (a) — for  which  three  reasons  are  assigned  in 
our  books.     First,  That  the  writings  offered   for  the 

(x)  R.   v.   Crouch,   4   Cox,  Cr.  Cas.  14;  Greaves  v.  Hunter,  2  C.  &  P.  477  ; 

163.  Macfcrson  v.  Thoytes,  1   Peake,  20; 

(y)  Burr  v.  Harper,   Holt,  N.  P.  C.  Brookbard  v.  Woodley,  Id.  n.  1a);  R. 

420.  v.  Cator,  4  Esp.  117;  De  la   Motte's 

(2)  5  A.  &  E.  703,  737.  Case,  21    Ho.   St.  Tr.   810;  Francia's 

(a)  Doe  d.  Mudd  v.  Suckermore,  5  Case,  15  Id.  923. 
A..  &  E.  703  ;  Stanger  v.  Searlc,  1  E>p. 


DOCUMENTS.  457 

purpose  of  comparison  with  the  document  in  question 
might  be  spurious;  and,  consequently,  that,  before  any 
comparison  between  them  and  it  could  be  instituted, 
a  collateral  issue  must  be  tried,  to  determine  their 
genuineness.  Nor  is  this  all — if  it  were  competent  to 
prove  the  genuineness  of  the  main  document  by  com- 
parison with  others,  it  must  be  equally  so  to  prove 
that  of  the  latter  by  comparison  with  fresh  ones  ;  and 
so  the  inquiry  might  go  on  ad  infinitum,  to  the  great 
distraction  of  the  attention  of  the  jury,  and  delay  in 
the  administration  of  justice.  (^)  Secondly,  That  the 
specimens  might  not  be  fairly  selected,  (c)  Thirdly, 
That  the  persons  composing  the  jury  might  be  unable 
to  read,  and,  consequently,  be  unable  to  institute  such 
a  comparison,  (d)  As  to  the  last  of  these  objections, 
it  docs  not  seem  satisfactory  logic,  to  prohibit  a  jury 
which  can  read,  from  availing  themselves  o(  thai 
means  for  the  investigation  of  truth,  because  other 
juries  might,  from  want  of  education,  be  disqualified 
from  so  doing; — if  some  men  are  blind,  that  is  no  rea- 
son why  all  others  should  have  their  eyes  put  out. 
Nor  is  the  second  objection  \n\  formidable — it  is  net 
always  easy  to  obtain  unfair  specimens  ;  and  should  such 
be  produced,  it  would  be  competent  to  the  opposite 
party  to  encounter  them  with  true  ones,  lint  there 
certainly  was  great  weight  in  the  first  objection,  par- 
ticularly when  taken  in  connection  wiih  th'  genera] 
rules  of  common-law  practice.  So  long  as  parties  t<> 
a  suit  were  allowed   i<>  mask   then   evidence  (ill  the 

(i>;  Per    Col<  ridge,   J.,  in    Doe    ti,  i    I  ord  J.,   in 

Mu. 1.1   -'.  Sui  kermore,  5  A.  &   1     .•  M  1  .    ] 

707  ;  2  Stark.  Ev.  516,  3rd  ed. ;  R,  C.  J.,  in  Bun        H     per, 

Sleigh,  Surrey   sum.    Ajss.  1851,  I  to;  per  Yates,  J 

Aldei  on,  B.,  Ms.  -  oodley,     1      P 

(c)  Id.  ;  and    per    Dallas,  C.  J  ;    per   Lord  Eld  m,  I    .    in 

Bun     .  Harper,  Holt,  N.  P.  C  4  1  '  1 75- 


458  INSTRUMENTS    OF    EVIDENCE. 

very  mordent  of  trial,  so  lone  would  it  have  been 
highly  dangerous  to  permit  cither  of  them  to  adduce 
ad  libitum,  for  the  purpose  of  comparison,  a  number 
of  supposed  specimens  of  handwriting,  which  the  op- 
posite party,  having  had  no  previous  notice  of  the 
intention  to  adduce,  would  not  be  in  a  condition 
either  to  answer  or  contradict — specimens  which 
might  not  be  fairly  selected,  or  even  be  the  handwrit- 
ing of  the  party  to  whom  they  are  attributed.  Still 
(he  exclusion  of  the  proof  of  handwriting  by  com- 
parison, was  not  satisfactory,  (e)  And  if  any  practical 
means  could  be  devised  to  secure  at  least  the  genuine- 
ness of  the  specimens,  it  ought  on  every  principle  to 
be  received  :  and  the  legislature  in  modern  times  has 
accordingly  taken  the  matter  in  hand,  as  will  be  shown 
presently.  (/") 

239.  There  are  several  common-law  exceptions  to 
the  rule  which  excludes  proof  of  handwriting  by 
comparison  :  the  first  of  which  is,  that  it  is  competent 
for  the  court  and  jury  to  compare  the  handwriting  of 
a  disputed  document,  with  any  others  which  are  in 
evidence  in  the  cause,  and  which  are  admitted  or 
proved  to  be  in  the  handwriting  of  the  supposed 
writer,  (g)  The  ground  of  this  exception  is  some- 
times said  to  be,  that  the  documents  being  already  be- 
fore the  jury,  to  prevent  their  mentally  instituting  such 
comparison  would  be  impossible  ;  (//)  but anotherand 
better  reason  is,  that  this  sort  of  proof  is  not  open  to 
the  dangers  to  which   the  comparison  of  hands  is  ex- 

(e)  2    Ev.    Poth.  1S5  ;  2    Stark.    Ev.  E.    514;  Solita    v.   Yarrow,    1    M.    & 

516,    3rd    ed.  •     Phill.    &    Am.    Ev.  Rob.  133  ;   R.  z>.  Morgan,  id.  134,  n. ; 

Allport   v.  Meek,  4  C.  &  P,  267  ;  Bro- 

(/)  See    17   &   18  Vict.   125,  ss.  27  mage   v.    Rice,   7   C.  &   P.  548  ;   R.  v. 

and    103,  and   28  Vict.  c.  18,  ss.  8  and  Sleigh,    Surrey    Sum.   Ass.    185],  per 

r,  infra.  Alderson,  15.,  M.S. 

(g)  Griffith   v.  Williams,  1  C.  &  J.  (A)  Doe  d.  Perry  v.  Newton,  5  A.  & 

47  ;   Doc   d.  Perry  v.  Newton,   5  A.  &  E.  514. 


DOCUMENTS.  459 

posed — namely,  the  raising  collateral  issues,  and  the 
jury  being  misled  by  spurious  specimens. 

240.  Another  exception  is  the  case  of  ancient  doc- 
uments. When  a  document  is  of  such  a  date,  that  it 
cannot  reasonably  be  expected  to  find  living  persons 
acquainted  with  the  handwriting  of  the  supposed  writer, 
either  by  having  seen  him  write,  or  by  having  held  cor- 
respondence with  him,  the  law,  acting  on  the  maxim, 
"  Lex  not)  cogit  impossibilia,"  (7)  allows  other  ancient 
documents,  which  are  proved  to  have  been  treated  and 
regularly  preserved  as  authentic,  to  be  compared  with 
the  disputed  one.  (/)  It  is  not  easy  to  determine  the 
precise  degree  of  antiquity  which  is  sufficient  to  let  in 
evidence  of  this  nature.  In  Roe  d.  Brune  v.  Rawlings, 
(/c)  the  supposed  writer  had  been  (had  about  sixty 
years  ;  in  Doe  d.  Tilman  v.  Tarver,  (  /  )  the  writing  was 
nearly  one  hundred  years  old  ;  and  in  Doe  d.  Jenkins 
v.  Davies  (m)  it  was  eighty-four  wars  old.  And  how 
this  comparison  is  to  be  made  is  nol  clearly  settled. 
In  Buller's  Nisi  Prius  (//)  a  ease  is  referred  to,  decided 
by  I  x>rd  1  [ardwicke  in  1  )ecember,  1 746, where  a  parsi  >n's 
book  was  produced  to  prove  a  modus.  The  parson 
having  been  long  dead,  a  witness  who  had  examined  the 
parish  hooks,  in  which  was  the  same  parson's  name,  was 
permitted  to  swear  to  the  similitude  of  tin  handwriting, 
&c.  In  the  case  of  Sparrow  v.  Farrant,  (0)  Holroyd,J., 
i-  reported  to  have  said  that,  in  order  to  make  ancient 
natures  available  for  this  purpose,  ;i  witness  should 
he  produced  who  is  able  to  swear,  from  his  having  ex- 
(1)  1  ImI,.  </,.  (/•)  7  ]•:..  1,  2 

ll.ill.  8    Am.   Ev.  701  ,   2  Stark.  M.    Me 

Ev.  516,  -  17.  3rd  ed.  ;  I;    X.  I'  («)  i"  Q.  B.     >  1 

1  Rawlings,   7    I  1  B.  N.  1 

28211.  (a);    Doe  ./.Tilman   v.  Tarvt*,  Ev.  517  n  (e),  3rd  ei 

M.  iti.l  "■•    •'  Mudd   v.  su.k-      I'. -v, n  Sp.  A    .    [819, 
eiruore,  5    A.  &    E.  703;  Doe  </.  Jen- 
kins v.  I  »avie     to  Q    I!.  314. 


460  INSTRUMENTS    OF    EVIDENCE. 

amined  several  of  such  signatures,  that  he  has  acquired 
a  sufficient  knowledge  of  the  handwriting  to  be  able, 
without  an  actual  comparison,  to  state  his  belief  on 
the  subject.  Subsequent  to  this,  however,  came  the 
case  of  Doe  d.  Tilman  v.  Tarver,  (/)  which  was  an 
action  of  ejectment,  tried  in  1824,  where,  in  order  to 
prove  that  a  place  called  Yard  Farm  was  part  of  a  cer- 
tain manor,  a  paper  was  put  in  evidence,  which  had 
been  handed  over  to  the  present  steward,  amongst  other 
papers  and  books  relating  to  the  manor,  by  the  repre- 
sentatives of  the  late  steward,  entitled,  "  An  account 
of  E.  II."  (who  appeared  by  the  books  and  rolls  be- 
longing to  the  manor  to  have  been  steward),  "re- 
ceiver of  the  Isle  of  Wight  estates  of  the  Lady 
F.,  for  two  years  ending  at  Michaelmas,  1727,"  and 
which  contained  an  entry  relative  to  Yard  Farm. 
In  order  to  prove  the  handwriting  of  E.  H.,  "  Lord 
Chief  Justice  Abbott,"  says  the  report,  "  directed 
the  person  producing  the  paper  to  compare  it  with  the 
handwriting  of  E.  H.  in  other  papers  belonging  to  the 
manor,  and  to  say  upon  oath  whether  he  believed  the 
writings  were  by  the  same  person  ;"  adding  that  this 
course  had  once  been  adopted  by  Lawrence,  J.  The 
observation  of  Lord  Denman  on  this  and  some  other 
cases,  in  Doe  d.  Mudd  v.  Suckermore,  {q)  that  it  does 
not  distinctly  appear  from  the  reports,  whether  the 
comparison  was  made  with  a  standard,  formed  in  the 
mind  of  the  witness  by  an  inspection  of  the  papers  pro- 
duced, or  whether  a  direct  comparison  was  made  in  the 
first  instance,  seems  well  founded  :  and  no  objection 
as  to  the  mode  of  putting  the  question  appears  to  have 
been  raised  by  the  counsel  on  either  side.  It  is  probable 
also,  that  the  witness  examined  in  the  case  before  Law- 

(/)  R.  &  M.  141.  (?)  5  A.  &  E.  703,  748. 


DOCUMEXTS.  46i 

rence,  j.,was  a  scientific  witness,  or  expert, — the  report 
speaks  of  him  as  being  accidentally  in  court  at  the  time. 
241.  In  this  state  of  the  authorities,  the  case  of 
the  Fitzwalter  peerage  (r)  came  before  the  committee 
of  privileges  of  the  House  of  Lords ;  and  we  shall 
state  this  case  somewhat  at  length,  it  being  one  of  the 
most  important  on  the  subject  of  handwriting  in 
general,  as  well  as  bearing  strongly  on  the  point  under 
consideration.  It  was  a  claim  to  a  peerage  which  had 
fallen  into  abeyance  in  1756,  and  the  petition  was 
heard  in  May,  1843.  The  claimant,  in  order  to  prove 
his  case,  proposed  to  put  in  evidence  some  family 
pedigrees,  which  were  produced  from  the  proper 
custody.  They  purported  to  have  been  made  by  E. 
F.,  who  died  in  1 75 1 .  He  had  stood  in  the  direct 
line  of  the  claimant's  ancestors;  so  that  if  those 
pedigrees  could  be  proved  to  be  of  the  handwriting 
of  E.  F.,  they  would  be  admissible  in  evidence  for 
the  claimant,  as  declarations  made  by  a  deccasi :d 
relative,  of  circumstances  respecting  the  state  of  his 
family  and  immediate  relatives.  It  was  proposed  to 
prove  the  handwriting  of  E.  F.,  by  producing  from 
the  Prerogative  Office  his  will,  which  had  been 
already  received  in  evidence  for  Other  purposes,  and 
four  other  documents,  which  were  proved  to  be  of  his 
handwriting;  namely,  a  confidential  letter  written  by 
him  to  the  steward  of  his  manor;  another  letter  by 
him,  appointing  a  gamekeepei  within  that  manor;  a 
memorandum  in  an  account  book;  and  a  deed  oi 
settlement  of  property  comprised  within  that  manor. 
These  were  produced  from  a  closet  which  contained 
the  claimant's  family  muniments,  including  the  title 
deeds  of  the  manor  and  property,  which  then  belonged 
to  him  in   right   of  his  grandmother.     It  was  proved 

(r)  IO  ci.  &  f  193. 


462  INSTRUMENTS    OF    EVIDENCE. 

that  the  deed  of  settlement  had  been  repeatedly,  and 
very  recently,  acted  upon,  and  that  all  the  documents 
bad  the  genuine  signature  of  "  E.  F."  It  was  next 
proposed  to  prove  the  identity  of  the  signer  of  those 
documents  with  the  writer  of  the  pedigrees,  by  com- 
parison of  the  handwriting  of  the  latter  with  the 
signatures  to  the  proved  documents ;  and  for  this 
purpose  the  inspector  of  franks  in  the  General  Post 
Office,  who  had  had  much  experience  in  distinguishing 
the  characters  of  handwriting,  was  called.  "  Being 
asked,"  says  the  report,  "if  he  had  examined  the 
signature  of'  E.  F.,  to  three  of  the  documents,  the 
deed,  the  will,  and  the  appointment  of  gamekeeper, 
all  of  which  were  produced  to  him,  he  said  he  had 
examined  the  signature  to  the  will  in  the  Preroga- 
tive Office  twice,  and  looked  four  or  five  times  at  the 
signatures  to  the  letter  and  other  documents  of  E.  F., 
and  to  the  handwriting  of  the  entries  in  the  account 
book,  and  of  queries  on  the  pedigree  of  the  family  at 
the  office  of  the  claimant's  solicitor ;  and  he  considered 
that,  by  the  inspections  he  had  made,  he  was  so  familiar 
with  the  handwriting  of  the  person  by  whom  these 
documents  were  written  or  signed,  that,  without  any 
immediate  comparison  with  them,  he  should  be  able 
to  say  whether  any  other  document  produced 
was,  or  was  not  in  the  handwriting  of  the  same 
person.  He  believed  all  these  documents  to  have 
been  signed  by  the  same  person  ;  and  he  did  not 
form  his  opinion  merely  from  the  signatures,  but  more 
from  the  general  similarity  of  the  letters,  which  he 
said  were  written  in  a  remarkable  character."  Tnis 
evidence  was  objected  to  by  the  Attorney-General,  on 
the  ground  that  the  witness's  knowledge  of  the  hand- 
writing was  acquired,  not  in  the  ordinary  course  of 
business,  but  from  having  studied  the  handwriting  for 


DOCUMENTS.  463 

the  1  urpose  of  speaking  to  the  identity  of  the  writer 
In  support  of  the  evidence  several  cases  were  cited 
by  the  claimant's  counsel,  and  among  others  Doe  d. 
Tilman  v.  Tarver,  and  Sparrow  v.  Farrant  ;  to  which 
it  was  replied,  that  the  Court  of  Queen's  Bench  had 
become  more  strict  in  its  practice  since  those  cases, 
most  of  which  were  cases  at  nisi  prius  or  on  the  cir- 
cuits. The  pedigree  was  rejected  by  the  committee 
as  evidence  ;  and  Lord  Brougham  added,  that  about 
five  years  before,  the  Lord  Chief  Justice  of  the  Queen's 
Bench  had  consulted  him  on  that  kind  of  evidence 
and  their  joint  impression  was  that  if  Doe  d.  Tilman 
v.  Tarver  and  Sparrow  v.  Farrant  were  correctly  re- 
ported, they  had  gone  further  than  the  rule  was  ever 
carried.  "  In  the  present  case,"  he  added,  "the  Lord 
Chancellor  (Lyndhurst)  and  himself  were  clearly  oi 
opinion,  that  they  ought  not  to  allow  a  person  t<>  say 
from  inspection  of  the  signatures  to  two  or  three  doc- 
uments— two  only,  the  deed  and  will,  being  genuine 
instruments,  admitted  to  be  in  the  handwriting  of  E. 
F., — from  the  inspection  of  those  two  documents,  thai 
he  could  prove  the  handwriting  of  the  party.  N 
doubt  such  evidence  had  been  often  received  because 
it  was  not  objected  to.  A  witness  was  properly  al 
lowed  to  speak  to  a  person's  handwriting,  from  inspec- 
tion of  a  number  of  documents  with  which  he  had 
grown  familiar  from  frequent  use  of  them;  and  it  was 
on  thai  ground  that  ;i  person's  solicitor  and  steward 
were  admitted  to  prove  his  handwritin  The  claim- 
ant' c<  in  '  having  then  referred  to  <  r<  »odl  il  le  d. 
Revi  1  v.  I  Iraham  (s)  in  which  an  in  pect<  >1  ol  frank 
al  the  Po  1  ( >ffice  was  admitted,  to  say  .1  a  matt<  1  of 
skill  and  judgment,  whether  the  nami  igned  to  a  will 
'  was  genuine  or   in  a  feigned   hand,   Lord    Brougham 

(j)  4  T.  K.  ; 


464  INSTRUMENTS    OF    EVIDENCE, 

continued,  "  Yes,  truly  ;  for  that  is  mattei  of  profes- 
sional skill.  But  that  is  no  reason  for  admitting  a 
witness  to  speak  to  the  real  handwriting  of  a  person, 
from  only  having  seen  a  few  of  his  signatures  to  other 
instruments  produced  to  him,  and  that  for  the  purpose 
of  proving  its  identity."  A  person  was  then  called 
who  said  he  had  been  the  family  solicitor  of  the  claim- 
ant for  more  than  thirty  years,  and  prior  to  that  had 
been  clerk  to  his  uncle,  who  was  the  family  solicitor 
for  forty  years  ;  and  who,  in  answer  to  questions  put 
to  him,  said  that  he  had  acquired  a  knowledge  of  the 
character  of  the  handwriting  of  E.  F.,  from  his  ac- 
quaintance with  a  great  number  of  title  deeds,  account 
books,  and  other  instruments,  purporting  to  have  been 
written  or  signed  by  him,  which  he  had  occasion  to 
examine  from  time  to  time  in  the  course  of  business 
for  his  client,  who  then  held  the  F.  estates.  This  wit- 
ness was  admitted  to  prove  the  handwriting  of  the 
pedigree  ;  and  he  said  he  believed,  and  felt  no  doubt 
whatever,  that  the  whole  of  it  was  in  the  handwriting 
of  E.  F.,  with  the  exception  of  a  few  words  near  the 
bottom,  which  he  pointed  out. 

242.  Since  the  case  of  the  Fitzwalter  peerage,  the 
case  of  Doe  d.  Jenkins  v.  Davies  (J)  was  decided  by 
the  Court  of  Queen's  Bench.  At  the  trial  of  the  cause 
in  1845,  the  parish  clerk  of  a  parish  at  Bristol  produced 
the  register  of  that  parish  for  1761,  which  contained 
an  entry  of  a  marriage  exactly  corresponding  with  a 
certificate  produced,  dated  1761,  both  purporting  to  be 
signed  by  "  \V.  D.,"  curate.  The  witness  stated  that 
he  had  been  clerk  lor  seven  years  and  a  half,  and 
during  that  time  had  acquired  a  knowledge  of  the 
handwriting  of  W.  D.  from  various  signatures  in  the 
register  ;  and  that  he   believed  the  signatures  to  the 

(0  10  Q.  B.  314. 


DOCUMENTS  465 

entry  in  question  in  the  register,  and  to  the  certificate, 
to  be  in  the  handwriting  of  W.  D.  This  evidence 
was  received  by  Colt  man,  J.,  as  proof  of  the  curate's 
handwriting,  and  his  ruling  was  affirmed  by  the  court. 
243,  Considerable  difference  of  opinion,  howe\  er, 
prevailed  on  the  question,  whether  it  was  allowable  to 
prove  the  handwriting  of  modern  documents,  by  the 
testimony  of  witnesses,  whose  judgment  as  to  the 
character  of  the  handwriting,  had  been  formed  from 
specimens  admitted  to  be  genuine,  and  shown  to  them 
with  a  view  of  enabling  them  to  form  such  opinion. 
InStangerv.  Searle,  (u)  where  the  question  turned 
on  the  genuineness  of  the  handwriting  on  a  bill  of  ex- 
change, purporting  to  have  been  accepted  by  the  de- 
fendant, Lord  Kenyon  refused  to  allow  a  witness,  an 
inspector  of  franks,  to  compare  the  dieputed  handwrit- 
ing with  that  on  other  bills  accepted  by  the  defendant, 
and  proved  to  be  in  his  handwriting;  though,  in  the 
subsequent  case  of  Allesbrook  v.  Roach,  (.1)  the  same 
judge  allowed  the  jury  to  compare  a  suspected  signa- 
ture with  others  admitted  to  be  authentic.  In  a  more 
recent  ease  of  Clermont  v.  Tullidge,  (  v)  a  witness  for 
the  plaintiff  Stated,  that  lie  was  in  the  habit  of  writing 
letters  lor  the  plaintiff;  and  he  admitted  that  one  put 
into  his  hand  was  written  by  him  by  (he  direction  of 
tin-  plaintiff,  and  signed  by  her.  The  defendant's 
counsel  then  put  another  letter  into  his  hand,  which 
he  said  was  not  written    by    him,  and    that    he  did    not 

believe  it  was  written  01  igned  by  the  plaintiff  An- 
other witness  having  been  called  lor  the  plaintiff, 
I  -"id  Tenti  rden  held  that  the  defendant'  1  »unsel  could 

not  show  him  both  letters,  and  .1  k  whethei  in  his  be- 
lief the}'  were  not  both  in  tip-  same  handwriting. 

(«)  1  E*p  r.i.  (;')  4  Car.  &  I'.  1.  I 

(jrl    1    I  ,51. 


466  INSTRUMENTS     OF   EVIDENCE. 

The  whole  subject  afterwards  underwent  a  com- 
plete investigation  in  the  case  of  Doe  d.  Mudd  v. 
Suckermore,  (Y)  in  which  the  rules  of  evidence  re- 
specting handwriting  were  much  discussed.  In  that 
case  the  question  turned  on  the  due  execution  of  a 
will,  and  the  three  attesting  witnesses  were  called.  It 
was  supposed  that  one  of  them,  S.,  was  deceived  in 
swearing  to  his  own  attestation  ;  and  that,  although 
he  had  attested  a  will  for  the  testator,  the  document 
produced  was  not  that  will,  but  a  forgery,  and  that  the 
attestation  was  in  truth  a  counterfeit.  Upon  his 
cross-examination,  two  signatures,  purporting  to  be 
his,  and  to»  have  been  subscribed  to  depositions  made 
by  him  in  proceedings  relating  to  the  same  will  in 
another  court,  but  not  produced  on  the  present  occa- 
sion, and  also  sixteen  or  eighteen  signatures,  appar- 
ently his,  were  shown  to  him,  and  he  said  he  believed 
they  were  all  in  his  handwriting.  The  cause  having 
been  adjourned,  on  a  subsequent  day  another  witness 
was  called  by  the  other  side, — an  inspector  at  the 
Bank,  professing  to  have  knowledge  and  skill  in 
handwriting, — who  deposed  that  he  had,  during  the 
progress  of  the  trial,  made  an  examination  of  the  sig- 
natures admitted  by  S.,  and  had  by  that  means,  and 
that  means  only,  acquired  such  a  knowledge  of  the 
character  of  his  handwriting,  as  enabled  him  to  speak 
to  the  genuineness  of  the  attestation  on  the  supposed 
will.  This  evidence  was  objected  to  as  being  proof  of 
handwriting  by  comparison  ;  and  as  such  it  was  rejected 
by  Vaughan,  J. ;  but  the  judges  of  the  Court  of  Queen's 
Bench,  after  hearing  the  question  fully  argued  on  a 
rule  for  a  new  trial,  differed  in  opinion.  Lord  Den- 
nan,  C.  J.,  and  Williams,  J.,  thought  the  evidence 
receivable,      and     argued    as      follows : — Admitting 

(z)  5  A.  &  E.  703. 


DOCUMEXTS.  467 

the  existence  of  the  rule  which  excluded  proof  of 
handwriting  by  comparison — concerning  the  abstract 
propriety  of  which  much  doubt  might  exist — the 
present  case  did  not  fall  strictly  within  it ;  and  a  rule 
so  objectionable  in  itself  ought  not  to  be  extended 
by  construction  or  inference.  No  difference  in  prin- 
ciple existed,  between  the  present  case  and  those  of 
Smith  v.  Sainsbury,  (a)  Earl  Ferrers  v.  Shirley,  (6) 
and  others,  where  witnesses  were  allowed  to  form 
their  opinion  of  handwriting  from  correspondence,  or 
from  having  casually  seen  the  handwriting  of  the 
party.  The  witness  here  appeared,  not  in  the  light  of 
an  ordinary  person,  called  on  to  place  the  doubtful 
papers  in  juxtaposition,  and  so  compare  them,  but  of 
a  scientific  individual,  called  on  to  give  to  the  jury 
the  benefit  of  his  skill ;  in  which  case  Burr  v.  Harper, 
(V)  and  the  numerous  cases  relative  to  the  proof  of 
ancient  documents,  showed  that  the  recency  of  the 
period  when  his  knowledge  of  the  handwriting  was 
acquired  could  make  no  difference.  But  even  sup- 
posing this  evidence  were  to  be  considered  equivalent 
to  a  comparison  of  handwriting,  still  the  reasons  for 
objecting  to  it  as  such  would  not  apply  in  the  present 
case  ;  for,  the  documents  having  been  admitted  by  the 
first  witness  to  1><-  of  his  handwriting,  no  collateral 
issue  1  ould  be  r.iiscd  upon  them  ;  which  distinguished 
the  ca  <•  from  thai  of  Stanger  v.  Searle,  (d)  and 
broughl  it  within  that  of  Allesbrook  v.  Roach,  (e) 
Patteson  and  Coleridge,  j\.,  on  the  other  hand, 
thought  the  evidence  rightly  rejected  li  differed 
from  the  knowledge  oi  handwriting  obtained  by  cor- 
k   ponclence,  &c,  in  1  li:    1     entiai  point,  namely,  the 

(a)  5  C.  &  P.  196.  (</)   I  I    p.  14. 

(/<)  1  M  UL351. 

(.•)   Holt,  N.  P.  C.  420. 


468  INSTRUMENTS     OF    EVIDENCE. 

iindesiarnedness  of  tin-  manner  in  which,  in  the  latter 
eases,  the  knowledge  is  obtained.  In  such  cases,  the 
letters  from  which  the  opinion  of  the  witness  is 
formed,  are  letters  written  in  the  course  of  business, 
&.C.,  without  reference  to  their  serving  as  evidence  for 
a  collateral  purpose  in  future  proceedings.  It  was 
admitted,  in  argument  at  the  bar,  to  have  been  the 
uniform  practice  for  many  years  to  reject  such  evi- 
dence as  this ;  and  rightly  so,  for  it  was  in  substance 
proof  of  handwriting  by  comparison ;  and,  with 
respect  to  the  fact  of  the  first  witness  having  admitted 
the  genuineness  of  the  specimens,  it  would  be  danger- 
ous to  allow  parties  to  the  suit  to  be  bound  by 
admissions  of  that  nature.  As  to  Allesbrook  v.  Roach, 
(_/)  it  must  be  considered  as  overruled  by  Doe  d. 
Perry  v.  Newton;  (^)  and  with  respect  to  Burr  v. 
Harper,  (//)  the  legality  of  that  decision  was  at  least 
questionable;  but  it  was  never  brought  under  review, 
the  verdict  having  been  against  the  party  in  whose 
favor  it  was  given.  They  considered  Stanger  v.  Searle 
(2)  and  Clermont  v.  Tullidge  (/£)  as  authorities  in 
point.  The  court  being  thus  equally  divided  in 
opinion,  the  rule  for  a  new  trial  was  of  course  dis- 
charged. The  decision  in  the  Fitzwalter  peerage  case, 
already  referred  to,  (/)  seems  to  support  the  view  of 
the  two  judges  who,  in  Doe  d.  Mudd  v.  Suckermore, 
were  for  rejecting  this  kind  of  evidence. 

244.  It  was  also  made  a  question  whether,  when 
a  witness  had  deposed  to  his  belief  respecting  the 
genuineness  or  otherwise  of  handwriting,  it  was 
competent  to  test  his  knowledge  and  credit,  by  show- 
ing him   other  documents,  not  admissible  as  evidence 

(/)  1  Esp.  351.  (t)  1  Esp.  14. 

(g)  5  A.  &  E.  514.  (k)  4C.  &P.  1. 

(A)   Holt,  N.  P.  C.  420  (/)  See  ante,  §  241. 


DOCUMENTS.  469 


in  the  cause,  nor  proved  to  be  genuine,  and  asking 
him  whether  they  were  in  the  same  handwriting  as 
the  disputed  one.  (m) 

245.  The  difficulties  attending  the  admission  of 
proof  of  handwriting  by  comparison  on  the  one  hand, 
and  its  exclusion  on  the  other,  have  been  already  no- 
ticed. (71)  The  Common  Law  Procedure  Act,  1854, 
17  &  18  Vict.  c.  125,  introduced  as  a  remedy  the  fol- 
lowing middle  course  in  civil    cases.     Sect.  27  enacts, 

*  Comparison  of  a  disputed  writing  with  any  writing 
proved  to  the  satisfaction  of  the  judge  to  be  genuine, 
shall  be  permitted  to  be  made  by  witnesses  ;  and  such 
writings,  and  the  evidence  of  witnesses  respecting  the 
same,  may  be  submitted  to  the  court  and  jury  as  evi- 
dence of  the  genuineness,  or  otherwise,  of  the  writing 
in  dispute."     By  sect.  103,  this  enactment   applies  to 

•  very  court  of  civil  jurisdiction  ;  and  the  28  Vict.c.  18, 
ss.  1,  8,  extends  its  provisions  to  criminal  cases. 

246.  In  order  to  disprove  handwriting,  evidence 
has  frequently  been  adduced  of  persons  who  have  made 
it  their  study,  and  who,  though  unacquainted  with 
that  of  the  supposed  writer,  undertake,  from  their  gen- 
1  ml  knowledge  of  the  subject,  to  say  whether  1  given 
piece  of  handwriting  isina  feigned  hand  or  not  Much 
difference  of  opinion  has  prevailed  relative  to  the  admis- 
sibility of  this  son  of  evidence.  It  was  received  by  Loo  l 
Kenyon  and  the  Courl  ol  Queen's  Bench, on  a  trial  .it 
bai,in  Goodtitled  Revetl  v.  Braham;  (0)  but  rejected 
by  the  same  judge  in  Cary  v.  Pitt,  (/)  on  the  ground 
thiit,  although  he  had  in  the  form*  1  1 .1  se  received  the 

"evidence,  he  had  laid  no  stre  5  upon  it  in  his  address  to 


(m)  Sec   Hughes  V.  R  '•!.&  <"  138. 

W.    -23  ;   (.Mints   v.   Iv  ry.    11     \  I  I    l.l'     : 

322     Young  v.  Honncr,  2    Moo.  &  K.  (/  App.  xxxir. 

536. 


470  INSTRUMENTS    OF    EVIDENCE. 

the  jurv.  Similar  evidence,  however,  was  afterwards 
admitted  by  Hotham,  13.,  in  R.  v.  Cator;  (^)  and  it 
has  also  been  received  in  the  ecclesiastical  courts,  (r) 
But  the  principal  case  on  the  subject  is  that  of  Gurney 
v.  Langlands,  (i)  which  was  an  issue  directed  to  tiy 
the  genuineness  of  the  handwriting  to  a  warrant  of  at- 
torney, and  where  an  inspector  of  Tranks  was  called  as 
a  witness,  and  asked.  "  From  your  knowledge  of  hand- 
writing, do  you  believe  the  handwriting  in  question  to 
be  a  genuine  signature,  or  an  imitation?"  This  was 
rejected  by  Wood,  B. ;  and,  on  a  motion  for  a  new 
trial,  Chief  Justice  Abbott  said,  "  I  have  long  been  of 
opinion,  that  evidence  of  this  description,  whether  in 
strictness  of  law  receivable  or  not,  ought,  if  received,  to 
have  no  great  weight  given  to  it.  .  .  .  The  other 
evidence  in  this  case  was  of  so  cogent  a  description,  as 
tc.  have  produced  a  verdict  satisfactory  to  the  judge 
who  tried  the  cause;  and  I  can  pronounce  my  judg- 
ment much  more  to  my  own  satisfaction  upon  a  ver- 
dict so  found,  than  if  this  evidence  had  been  admitted, 
and  had  produced  a  contrary  verdict.  For  I  think  it 
much  too  loose  to  be  the  foundation  of  a  judicial  de- 
cision, either  by  judges  or  juries."  And  Holroyd,  J.,  said 
"  I  have  great  doubt  whether  this  is  legal  evidence  ; 
but  I  am  perfectly  clear  that  it  is,  if  received,  entitled 
to  no  weight."  Bayley  and  Best,  JJ.,  concurring,  the 
rule  was  refused.  A  somewhat  similar  notion  seems 
to  have  found  its  way  to  Doctors'  Commons,  where  Sir 
J.  Nicholl  is  reported  to  have  declined  the  offer  of  a 
glass  of  high  power,  used  by  professional  witnesses  of 
this  kind,  to  examine  the  handwriting  and  see  if  the 
letters  were  what  is  commonly  termed  painted  ;  add- 

(q)  4  Esp.  117.  R.  216;  Beaumont  v.  Perkins,  I   Phil- 

\r)  Saph  v.  Atkinson,  l  Add.  Eccl.      lim.  78. 

(j)  5  B.  &  A.  330. 


DOCUMENTS.  471 

ing  that,  in  his  opinion,  the  fact  of  their  being  painted, 
was  in  itself  an  extremely  trivial  circumstance.  (/) 
This  is  carrying  matters  a  great  way,  and  further 
than  is  usual  in  courts  of  common  law,  which 
never  reject  the  artificial  aid  of  glasses  or  lamps, 
where  they  can  be  of  assistance  in  the  investigation 
of  truth.  That  scientific  evidence  of  the  nature 
in  question  may,  in  the  language  of  C.  J.  Abbott,  "  be 
much  too  loose  to  be  the  foundation  of  a  judicial  de- 
cision," may  be  perfectly  true  ;  but  to  declare  it  inad- 
missible as  an  adminiculum  of  testimony  is  rather  a 
strong  position.  Indeed,  its  admissibility  seems  to  be 
recognized  in  the  more  recent  cases  of  the  Til/waiter 
peerage,  (it)  the  Tracy  peerage,  (x)  and  Newtown  v. 
Ricketts ;  (y)  and,  according  to  the  present  practice, 
it  is  generally  received  without  objection.  The  Tracy 
peerage  ease  also  shows,  that  the  evidence  of  persons 
whose  occupation  makes  them  conversant  with  MSS. 
of  different  ages,  is  receivable  to  prove  that  a  given 
piece  of  handwriting  is  of  a  particular  date. 

247.  Whatever  may  be  the  relative  values,  of  the 
several  modes  of  proving  handwr' ting  which  have  been 
discussed  in  this  chapter,  when  compared  with  each 
other,  it  is  certain  that  all  such  proof  is  even  in  its 
best  form  precarious,  and  often  extremely  dangerous. 
(  )  "On  a  forgotten  matter  we  1  an  hardly  make  dis- 
tinction of  hands."  (a)  "Many  persons,"  it  h 
been  well  1  marked,  "write  alike;  having  the  same 
t<  a<  hi  1 ,  wril  ing  in  the  sane  mIIh  e,  I"  ing   ol  1  he  same 

!  A  Id.  E.  K.  1  II.  L 1 

f.8,  8>,  ibel,  1 1  I  fur.  Civ,  M>.  22, 

II  \\   K.  61,  <<2 ;  and    In   ill-      tit.  4  l  .    m 

X>ds  of  0  iiu,  17  Jur.  3'/',. 

(«)  10  CI.  vV-  F.  I  Ni<  hull,  in   I 

it*)  Id.  154.  I  ■       1 

1  Night,  Act  a,  S(  ene  3. 


472  INSTRUMENTS    OF    EVIDENCE. 

family,  all  these  produce  similitude  in  handwriting, 
which  in  common  cases,  and  by  common  observers, 
is  not  liable  to  be  distinguished.  The  handwriting  of 
the  same  person  varies  at  different  periods  of  life  :  it 
is  affected  by  age,  by  infirmity,  by  habit."  (b)  The 
two  following  instances  show  the  deceptive  nature  of 
this  kind  of  evidence.  The  first  is  related  by  Lord 
Eldon,  in  the  case  of  Eagleton  v.  Kingston,  (c)  A 
deed  was  produced  at  a  trial,  purporting  to  be  attested 
by  two  witnesses,  one  of  whom  was  Lord  Eldon.  The 
genuineness  of  the  document  was  strongly  attacked  ; 
but  the  solicitor  for  the  party  setting  it  up,  who  was  a 
most  respectable  man,  had  every  confidence  in  the  at- 
testing witnesses,  and  had  in  particular  compared  the 
signature  of  Lord  Eldon  to  the  document,  with  that 
of  pleadings  signed  by  him.  Lord  Eldon,  however, 
had  never  attested  a  deed  in  his  life.  The  other  case 
occurred  in  Scotland,  where,  on  a  trial  for  the  forgery 
of  some  bank  notes,  one  of  the  banker's  clerks  whose 
name  was  on  a  forged  note  swore  distinctly  that  ii  was 
his  handwriting,  while  he  spoke  hesitatingly  with 
regard  to  his  genuine  subscription.  (d)  Stand- 
ing alone,  any  of  the  modes  of  proof  of  handwriting 

{b)  Per   Adam,   arguendo,   in    R.  v.  ical  style  of  writing,  which  obliterates 

Mr.  Justice  Johnson,  29    Ho.   St.   Tr.  all    natural    characteristics,   unless    in 

475.     See,  also,  per  Sir  J.  Nicholl,  in  instances    where  the    character    is    so 

Constable     v.    Steibel,    1     Hagg.     N.  strongly  individual  as  not  tobe  modified 

R.  61.     "  Literarum  dissimilitudinem  into  the  general  mass.     In  the  present 

sx-pe  qnidem  tempus  facit.   nun  enim  day    all    females    seem    to    be    taught 

ita  quis  sci  ibit  jnvenis  et  robu>tus,  ac  after  one   model.     In  a  great   propor- 

senex  et  forte   tremi  pe  autem  lion   the  handwriting  is  moulded  on 

et  languor  hoc  facit:  et   quidern  hoc  this  particular  model,  iVc.     We  often 

dicimus,  quando   calami   et   atramenti  find   that   the  style  of  handwriting   is 

lmmutatiu,    similitudinis    per    omnia  hereditary,  &c.  &c." 
aufert    puritatem."      Nov.     LXXIII.  (<r)  8  Ves.  476. 

Praef.     See    the   able  article  "Autog.  (d)  Case    of    Carsewell,    Glasgow 

raphy,"  in  Chambers'  Edinburgh  Jour-  1791  ;  cited   Burnett's  Crim.  Law  of 

nal  for  July  26,  1845,  where  it   is  said,  Scotland,   502;  Wills,  Circ.  Ev.   112, 

"Men  of  bu-iness  acquire  a  median-  3rd  ed. 


DOCUMENTS.  47j 

by  resemblance  are  worth  little — in  a  criminal  case- 
nothing- — their  real  value  being  as  adminicula  of  testi 
mony.  But  still,  if  the  defendant  does  not  produce 
evidence  to  disprove  that  which  is  adduced  on  behalf 
of  the  plaintiff,  this  raises  an  additional  presumption 
in  favor  of  the  latter.  Slight  evidence,  uncontradicted 
may  become  cogent  proof. 

248.  Our  ancient  lawyers  appear  to  have  used  the 
expression,"  comparison, or  similitude  of  handwriting," 
in  its  more  proper  and  enlarged  sense  ;  as  designating 
any  species  of  presumptive  proof  of  handwriting  by 
resemblance — cither  comparison  with  a  standard,  pre- 
viously created  in  the  mind  ex  visu  scriptionis  or  ex 
scriptis  olim  visis,  or  direct  comparison  in  the  modern 
sense  of  the  word — and  to  have  considered  that  any 
of  those  modes  of  proof  was  admissible  in  civil,  and 
none  of  them  in  criminal  cases,  (c)  This  latter  dis- 
tinction was,  however,  abandoned  in  modern  times 
until  its  partial  revival  by  the  Common  Law  Proce- 
dure Act,  1854  ;  (/)  but  since  the  28  Vict.  e.  18,  ss. 
1  and  8,  it  may  be  looked  on  as  completely  al  an 
end. 

(/■)  See  the  note  to    Doe  </.  Mudd  v.  trial  and  the  Statute  will  be  found    in 

Suck.                                 03,  752;  and  9  Ho.  St,  Tr.  817, 1 

ms  to  have  been  on  this  principle  (/)  17   &    iS  Vict,  c   125,  s.  ay. 

that  theattai                       non  Sidney,  supra,  §  2.15. 
in  1683,  was  reversed  by  statute.    Hia 


474        PRIMARY    RULES     OF    EVIDENCE. 


BOOK    III. 

RULES    REGULATING    THE   ADMISSIBILITY    AND 
EFFECT   OF  EVIDENCE. 

Primary  and  Secondary  Rides  of  Evidence. 

249.  The  rules  regulating  the  admissibility  and 
effect  of  evidence  are  of  two  kinds — Primary  and 
Secondary  ;  the  former  relating  to  the  quid  proban- 
dum,  or  thing  to  be  proved  ;  the  latter  to  the  modus 
probandi,  or  mode  of  proving  it.  They  will  be  con- 
sidered in  two  separate  Parts. 


PART  I. 

THE  PRIMARY    RULES   OF    EVIDENCE. 

250.  The  primary  rules  of  evidence  may  all  be 
ranged  under  three  heads,  in  which  we  accordingly 
propose  to  examine  them. 

1.  To  what  subjects  evidence  should  be  directed. 

2.  The  burden  of  proof,  or  onus  probandi. 

3.  How  much  must  be  proved. 

These  rules,  as  stated  in  a  former  part  of  this  work, 
{a)  have  their  basis  in  universally  recognized  princi- 
ples of  natural  reason  and  justice ;  but  owe  the  shape 
in  which  they  are  actually  found,  and  the  extent  to 
which  they  prevail,  to  the  artificial  reason  and  policy 
of  law. 

(a)  Bk.  1,  pt.  2,  §  in. 


SUBJECTS     OF    EVIDENCE.  475 


CHAPTER  I. 

TO    WHAT     SUBJECTS    EVIDENCE    SHOULD    BE     DIRECTED. 

PARAGRAPH 

Evidence  should  be  directed  and  confined  to  the  matters  which  are  in 

dispute,  or  form  the  subject  of  investigation 251 

Twofold  grounds  of  irrelevancy  of  evidence 252 

1.  Connection    between    principal  and  evidentiary   facts    too   re- 

mote     .  ..........         252 

2.  Excluded  by  the  pleadings,  &c,  or  rendered  superfluous  by  ad- 

missions        ...........  252 

M-.-.tters  unnecessary  to  be  proved  . 252 

1.  Matters  noticed  by  the  courts  ex  officio 253 

2.  Matters  deemed  notorious 254 

Evidence  rejected  for  remoteness 255 

Only  applicable  to  presumptive  evidence 255 

Instances      . 255 

Evidence  to  prove  intent 255 

Evidence  to  character  ........  256 

Evidence  of  the  character  of  parties         ....  257 

General  rule — not  receivable 257 

Exception — \\  lien    the    character    of   a    party    is    in 

issue  by  the  nigs  ....  258 

Evidence  as  to  character  of  the  accused  ill   crim- 
inal prosecutions 259 

Nature  of  character  evidence  liable  to  be  misunder- 
stood          260 

May  be  1  ontradii  ted      . s6l 

But  not  encountered  by  proof  of  particular  acts 

Exceptions      .        . afil 

Witi  to  the  charactei   of  parties   treated    with 

a  indulgence      ....... 

Evidence  as  to  the  character  of  witnesses     .... 

Evident  e   nol  poinl   of  vii  w ,   01  foi    <>■     pur] 

ad;.  in  or  for  sorm 

i.l.  not  adm  to    pro  the    matters   in 

question  admissible  to  prove  ol  1  • 

2.  Evidi  le  in  th  may  b 

mattei  subsequent     .......•• 

3.  Evideno  ible  to  prove  sul  principal  fa    •      . 

251.  Of  all  rules  of  evident  e,  the   mosl    univeri  al 
and  the  most  obvious  is  this     that    the  evidence  ad 


4/6        PRIMARY    RULES    OF    EVIDENCE. 

duccd,  should  be  alike  directed  and  confined  to  the 
matters  which  are  in  dispute,  or  which  form  the  sub- 
ject of  investigation.  The  theoretical  propriety  of  this 
rule  never  can  be  matter  of  doubt,  whatever  difficul- 
ties may  arise  in  its  application.  The  tribunal  is  cre- 
ated, to  determine  matters  which  either  are  in  dispute 
between  contending  parties,  or  otherwise  require 
proof;  and  anything  which  is  neither  directly  nor  indi- 
rectly relevant  to  those  matters,  ought  at  once  to  be 
put  aside  as  beyond  the  jurisdiction  of  the  tribunal, 
and  as  tending  to  distract  its  attention  and  to  waste 
its  time.  "  Frustra  probatur  quod  probatum  non 
relevat."  (a)  "  Evidence  to  the  jury,"  says  Finch,  (6) 
"  is  anything  whatsoever  which  serves  the  party  to  prove 
the  issue  for  him  :  but  that  which  does  not  warrant 
the  issue  is  void :  as  in  a  formedon,  and  the  gift 
traversed,  the  demandant  shall  not  give  in  evidence 
another  donor."  So,  on  the  trial  of  an  indictment  for 
stealing  the  property  of  A.,  and  also  for  receiving  it 
knowing  it  to  have  been  stolen  ;  evidence  of  posses- 
sion by  the  prisoner,  of  other  property  stolen  from 
other  persons  at  other  times,  was  not  admissible  at 
common  law,  to  prove  either  the  stealing,  or  the  re- 
ceiving with  guilty  knowledge,  (c)  l 

(a)   Broom's   Maxims,  xxix.  4th  ed.  ;  faits:    et   il  doit  au  contraire  rejetcr 

Ilalk.   Max.  50.     "La  liberte   d'alle-  ceux  dont  la  preuve,  quand  ils  seroient 

guer  et  de  prouver  des  faits,  ne  s'etend  veritables,   seroit    inutile."      Dornat, 

pas  a  toutes  sortes  de  faits  indistincte-  Lois   Civiles,    &c.,  pt.    1,  liv.  3,  tit.  6, 

ment  ;  mais  le  judge  ne  doit  recevoir  seet.  1,  §  10. 
la  preuve,  que  de  ceux  qu'on  appelle  (&)  Finch,  Comm.  Laws,  61  b. 

periinens;  e'est-a-dire,  doni    on   pent  (/)  R.  v.  Oddy,   2  Den.  C.  C.  264. 

tirer  des   consequences,  qui   servent  a  But  now,  by  the  33  &  34  Vict.  c.  112, 

etablir  le  droit  de  celui qui  allegue  ces  s.  19,  "where  proceedings  are  taken 

1  Sec,  as  to  the  res  gestx>,  Blackwell  v.  Hamilton,  47  Ala. 
470;  Earle  v.  Tupper,  45  Vt.  272;  Filer  v.  New  York  Central 
R.  R.  Co.:  49  X.  V.  42;  Tevis  v.  I  licks,  41  Cal.  123;  Hamilton 
v.  State,  36  Ind.  281;  Bench  v.  Bemis,  107  Mass.  498;  State  v. 
Kcene,  50  Mo.  357  ;  Courtney  v.  Baker,  34  N.  Y.  Superior  Ct 


SUBJECTS    OF    EVIDENCE. 


477 


lhat  such  person  knew  the  property  to 
be  stolen,  which  forms  the  subject  of 
the  proceed  ngs  taken  against  him." 
'1 5 1 is  statute,  however,  does  not  shift 
the  onus  probandi,  so  as  to  make  it 
incumbent  on  the  prisoner  to  prove 
the  absence  of  guilty  knowledge.  R. 
v.  Davis,  39  L.  J.,  M.  C.  135. 


252.  Evidence  may  be  rejected  as  irrelevant  for 
one  of  two  reasons,  ist.  That  the  connection  be- 
tween the  principal  and  evidentiary  facts  is  too  remote 

against  any  person,  for  having  received 
goods  knowing  them  to  be  stolen,  or 
for  having  in  his  possession  stolen 
property,  evidence  may  be  given,  at 
any  stage  of  the  proceedings,  that 
there  was  found  in  the  possession  of 
such  person,  other  property  stolen 
within  the  preceding  period  of  twelve 
months,"  "  for  the  purpose  of  proving 

529;  Howell  v.  Ilnyck,  2  Abb.  (N.  Y.)  App.  Dec.  423;  Kelley 
v.  Campbell,  Id.  492;  People  v.  Williams,  Id.  596;  Handy  v. 
Johnson,  5  Md.  450;  Hover  v.  Stevens,  1  Woodb.  &  M.  290; 
Elliott  v.  Stoddard,  98  Mass.  145;  Franklin  v.  Woodland,  14 
La.  Ann.  188;  Corinth  v.  Lincoln,  34  Me.  310;  Stewart  v. 
Hanson,  35  Me.  506;  Duvall  v.  Medtart,  4  Har.  &  J.  (Md.)  14; 
Curtis  v.  Moore,  20  Md.  93  ;  Land  v.  Tyngsborough,  9  Cush. 
(Mass.)  36;  Crowthcr  v.  Gibson,  19  Mo.  365  ;  Plumer  v.  French, 
22  N.  II.  (2  Lost.)  450;  Johnson  v.  Elliott,  26  \.  II.  (<>  host.) 
67;  Tucker  v.  Peaselee,  36  X.  II.  i6j\  Atherton  v.  Tilton,  11 
N.  II.  452;  State  v.  Huntley,  3  [red.  (N.  C.)  L.  418;  Slitt  v. 
Wilson,  Wright  (Ohio),  505  ;  Wetmore  v.  Mell,  1  Ohio  St.  26; 
Posterns  v.  Posterns,  3  Watts  &  S.  (Pa.)  127;  Hood  v.  Hood, 
2  Grant  (Pa.)  Cas.  229;  Rees  v.  Livingston,  .j  1  Pa.  St.  113; 
Turpin  v.  Brannon,  3  McCord  (S.  C.)  261  ;  Martin  \.  Simpson, 
4  Id  262;  James  v.  Brownfield,  2  Pa.  St.  55 ;  United  States  v. 
Omeara,  1  Cranch  C.  Ct.  [65;  Webb  v.  Kelly,  1  AJa.  ,m<>; 
Varborough  v.  Moss,  9  Ala.  382 ;  Hopei  v.  Edwards,  20  Ala. 
528;    Sanford  v.   Howard,  29   Ala.  684;    Li.e-  Ma:  ;ie, 

Ala.  89;  Cornelius  \.  State,  \2  Ark.  7  •;  '  lark  v.  Rush,  [9 
Cal.  393;  Russell  v.  Frisbie,  19  Conn.  205  ;  Robinson  v.  Lane, 
1 9  ( ,:i   337  ;    (  l;i  vion  v.  'I  u<  ker,  20  Ga.  452 ;    F  Co<  »k,  9 

Ul.  (4  Gilm.)  1  [6  ;  Strange  v.  Donohue,  1  Ind  Austin  v. 

Swank,  9  I  iid  109;  Pains  v.  Jenkins,  2  Rich.  (S.  C.)  1  B 
\  Coffman,  Overt.  (Tenn.)  1 ,  Kerby  v.  Sen.-,  7  Verg,  (Tom.) 
259;  Evans  v.  Jone  .  1  [d.  \6i  ;  Elkin  v  Hamilton,  20  Vt 
,  ;  Gillel  v.  Phelp  ,  12  Wi  \g  ■ ;  Koi  h  v.  ]  [owell,  6  Watts 
e<  s.  (Pa  )  350;  Tomkins  v.  Reynolds,  17  Ala.  109;  People  v. 
Vernon,  35  Cal.  \<r,  Mitchum  v.  State,  11  Ga.  615 ;  Handy  v, 
Johnson,  5  Md.  450;    Meek  v.  Pi  M        <  Matthewi 

v.  Coalter,  9  M  ■>.  705 ;  Se  ions  v.  I  ,nt  l<-.  9  N .  II  271;  Ma  j  v, 
De  Wolf,  3  Woodb.  a   M.  193;    Stein  v.  State,  1  Ala    Sel   '     • 


478        PRIMARY    RULES    OF    EVIDENCE. 

and   conjectural.     2nd.  That    it    is    excluded    by   the 

state    of  the    pleadings  or  what  is  analogous   to  the 

pleadings;  or  is  rendered  superfluous  by  the   admis- 

29;  Robertson  v.  Smith,  iS  Ala.  220;  Edgar  v  McArn,  22 
Ala.  796;  People  v.  Shea,  8  Cal.  538;  Carter  v.  Buchanan,  3 
Ga.  513 ;  State  v.  Shelledy,  8  Iowa,  477  ;  Steam  Navigation  Co. 
v.  Dandridge,  8  Gill  &  J.  (Md.)  248;  Cramer  v.  Shriner,  18 
Md.  140;  Murray  v.  Bethune,  1  Wend.  (X.  Y.)  191;  MoKet  v. 
People,  36  X.  Y.  113;  Hall  v.  James,  3  McCord  (S.  C)  222; 
Fifield  v.  Richardson,  34  Vt.  410;  Jewell  v  Jewell,  1  How. 
219;  17  Pet,  219;  Hale  v.  Taylor,  45  N.  H.  405  ;  Wilson  v. 
Ilillyer,  1  X.  J.  Eq.  (Sax.)  63;  Moore  v.  Meacham,  10  N.  Y. 
(6  Seld.)  207  ;  Weeks  v.  Lowerre,  8  Barb.  (N.  Y.)  530;  Pursell 
v.  Long,  7  Jones  (X  C.)  L.  102  ;  State  v.  Black,  6  Joneu  (N.  C.) 
L.  510;  Bond  v.  Hunter,  1  Yeates  (Pa.)  284;  Duvall  v.  Darby, 
38  Pa.  St.  56;  Oelrichs  v.  Artz,  21  Md.  524;  Salem  v.  Lynn, 
13  Mete.  (Mass.)  544;  Johns  v.  Johns,  29  Ga.  71S;  Windettv. 
Taylor,  28  111.  239;  Morris  v.  Hazlewood,  1  Bush  (Ky.)  208; 
D'Aquin  v.  Barbour,  4  La.  Ann.  441  ;  Euperrier  v.  Dautrive, 
12  La.  Ann.  664;  Battles  v.  Batchelder,  39  Me.  19;  Small 
v.  Gillman,  48  Me.  506;  Leffler  v.  Allard,  18  Md.  545; 
Chapin  v.  Marlborough,  9  Gray  (Mass.)  244;  Cushing 
v.  Willard,  11  Gray  (Mass.)  247;  Barnum  v.  Hackett, 
35  Vt.  77;  People  v.  Graham,  21  Cal.  261;  Xoyes  v. 
Ward,  19  Conn.  250;  Comins  v.  Comins,  21  Conn.  413; 
Blood  v.  Ridiout,  13  Mete.  (Mass.)  237;  Moody  v.  Savin,  9 
Cush.  505  ;  Commonwealth  v.  Moulton,  4  Gray  (Mass.)  39; 
Stetson  v.  Howland,  2  Allen,  591  ;  Earle  v.  Earle,  11  Id.  1; 
Cunningham  v.  Parks,  97  Mass.  172  ;  Salmons  v.  Davis,  29  Mo. 
176;  Sharp  v.  Miller,  3  Smed.  42  ;  Knouse  v.  Sheffert,  58  Pa. 
St.  152  ;  Gilbert  v.  Gilbert,  22  Ala.  529;  Fail  v.  McArthur,  31 
Id.  26;  Patten  v.  Ferguson,  18  X.  H.  528;  Morrill  v.  Foster, 
32  Id.  358;  n  Id.  379;  Currier  v.  Boston,  &c.  R.  R.  Co.,  31 
Id.  498;  People  v.  Williams,  3  Park.  (X.  Y.)  Cr.  84;  Webb  v. 
Kelly,  37  Ala.  m  ;  Hall  v.  State,  40  Id.  698;  Gardner  v.  Peo- 
ple, 4  111.  (3  Scam.)  83;  State  v.  Jackson,  17  Mo.  544;  People 
v.  Simonds,  19  Cal.  275  ;  Shuck  v.  Vandcrventer,  4  Greene, 
(Iowa),  264;  Farner  v.  Turner,  1  Iowa,  53;  Wadsworth  v.  Har- 
rison, 13  Id.  272  ;  Law  v.  Cross,  1  Black,  533  ;  Wood  v.  Barker, 
1  Ala.  Sel.  Cas.  311  ;  37  Ala.  60;  Hale  v.  Stone,  14  Id.  803  ; 
Johnson  v.  State,  17  Id.  618;  Hudson  v.  Crow,  26  Id.  515; 
Johnson  v.  Boyles,  Id.  576;  Devling  v.  Little,  26  Pa.  St.  502; 
Warner  v.  Scott,  39  Id.  274  ;  Garber  v.  State,  4  Coldw.  (Tenn.) 
161  ;  Rogers  v.  Broadnax,  27  Tex.  238;  Danforth   v.  Streeter, 


SUBJECTS    OF    EVIDENCE.  479 

sions  of  the  party  against  whom  it  is  offered.  The 
use  of  pleadings,  or  of  some  analogous  statement  of 
the  cases  of  the  contending  parties,  is  to  enable  the 
tribunal  to  see  the  points  in  dispute,  and  the  parties 
to  know  beforehand  what  th$y  should  come  prepared 
to  attack  or  defend ;  consequently,  although  a  piece 
of  evidence  tendered  might,  if  merely  considered  per 
se,  establish  a  legal  complaint,  accusation,  or  defense  ; 
yet,  as  the  opposite  party  has  had  no  intimation  be- 
forehand that  that  ground  of  complaint,  &c.  would  be 
insisted  on,  the  adducing  evidence  of  ir  against  him, 
would  be  taking  him  by  surprise  and  at  a  disadvan- 
tage. Hence  the  maxim  of  pleading,  "Certa  debet 
esse  intentio  et  narratio,  ct  certum  fundamentum,  et 
certa  res  qua?  deducitur  in  judicium."  (V) 

The  discussion  of  the  admissibility    of    evidence 

(d)  Co.  Lilt.  303  a.     See  also  5  Co.  61  a ;  Jenk.  Cent.  2,  Cas.  64. 

28  Vt.  490;  Johnson  v.  Hamburger,  13  Wis.  175  ;  Morgan  v. 
Sims,  26  Ga.  283;  Drumright  v.  State,  29  Id.  430;  Nelson  v. 
Smith,  28  111.  495;  -Malici-  v.  Chicago,  38  111.  266;  Dale  v. 
Gower,  24  Me.  563 ;  Lampley  v.  Scott,  24  Miss.  528;  Gamble 
v.  Johnson,  9  Mo.  605  ;   Palter  v.  McDowell,  31  Id.  62  ;  Badj 

v.  Story,  c6  N.  II.  i".S;  Cheswell  v.  Eastham,  M.  296;  Kenl  v. 
Harcourt,  ;  ;  Barb.  (N.  Y.)  (.91 ;  Brice  v.  Lide,  30  Ala.  ''.17; 
McLemore  v.  Pinkston,3i  Id.  266;  Autauga  County  v.  Davis, 
32  Id.  703;  Dillard  v.  S<  rugg  .  36  Id.  67    ;  Gillam  v.  Sigman, 

29  Cal.  637;   Printup  v.  Mitchell,  17  Ga.  558;  Dobbs  v.  fu 
ces,  &<  ,,  Id.  624;   I  [art  v.  Powell,  1  •  Id  fan  v.  ( !ui 
ton,  [9   Id.   404;  Commonwealth  v.   M'Pike,    ;  I  u  h    (Ma 

I  harlton,  Id.  581  ;  Barbei  v.  Mei  riam,  1  1  Allen 
(Mass.)  |22  ;  Hyatt  v.  Adams,  16  Mich.  180 ;  Hall  v.  Steamboat 
I  .,13  ('..mi.  319;  MiKlmm  v.  State,  11  Ga  615;  Black  v. 
Thornton,  30  Id.  [61;  Black  v.  Thornton,  ;i  Id  641 ;  Stilwell 
v.  New  \  R.  R.  Co     [4  N.  Y.  29;  Lu  I  '  niel, 

13  Ired.  (N.  (    |L.  485;  1  >enton  v.  State,  1   Swan.  (I  enn  1 
Statev.Dn         >n,  30  Vl    ;77;Boone,&<    Bank  v.  Wallace,  18 
Ind.  82;  Knowlton  v.  Clai  Id    393  :   Pil<      v.  H        es,  10 

Iowa,  579;   Marcy  v.  Merchants,  &c.  Ins  Co.,  191a   Ann..; 
Koll.  v.  Whitely,  3  Gill.  &  J.  (Md.)  188. 


48o        PRIMARY    RULES    OF    EVIDENCE. 

under  the  various  forms  of  pleading  in  particular 
actions,  would  be  wholly  inconsistent  with  the  design 
of  this  work  ;  and  we  will  therefore  confine  ourselves 
to  the  general  question  ;  before  proceeding  to  which, 
however,  it  is  important  to  observe,  ►that  there  are 
certain  matters  which  it  is  unnecessary  to  prove,  i.e.  i. 
Matters  noticed  by  the  courts  ex  officio.  2.  Matters 
deemed  notorious.  "  Lex  non  requirit  verificare  quod 
apparet  curiae."  (e)  "Quod  constat  curiae  opere  testium 
non  indiget."  (/") 

253.  1.  An  enumeration  of  the  matters  which  the 
courts,  in  obedience  to  common  or  statute  law,  notice 
ex  officio,  would  here  be  out  of  place,  (jf)  Suffice  it 
to  say  generally  that,  besides  noticing  the  ordinary 
course  of  nature,  seasons,  times,  &c,  the  courts  notice 
without  proof  various  political,  judicial,  and  social 
matters.  Thus,  they  notice  the  political  constitution 
of  our  own  government ;  the  territorial  extent  of  the 
jurisdiction  and  sovereignty  exercised  de  facto  by  it; 
the  existence  and  titles  of  other  sovereign  powers ; 
the  jurisdiction  of  the  superior  courts,  and  courts  of 
general  jurisprudence ;  the  seals  of  the  superior 
courts,  and  of  many  others ;  the  custom  or  law  of  the 
road,  that  horses  and  carriages  shall  respectively  keep 
on  the  left  side,  &c.  &c.  In  all  cases  of  this  kind, 
where  the  memory  of  a  judge  is  at  fault,  he  resorts  to 
such  documents  or  other  means  of  reference  as  may 
be  at  hand,  and  he  may  deem  worthy  of  confidence. 
(/i)  Thus,  if  the  point  at  issue  be  a  date,  the  judge 
will  refer  to  an  almanac.  (7)     The  printed  calender 

(e)  9  Co.  54  b.  (//)   r    Green].    Ev.    §    6,    7th    ed.  ; 

(/)  2  Inst.  662.  Tayl.  Ev.  §  20,  3rd  ed. 

(g)  A  hrgc  number  will   he  found  (?)  Id.;  and    see   Sulton   v.  Darke. 

collected    in   Tayl.  Evid.   pt.  1,  ch.  2,  5  H.  &  N.  647,  649. 
5th  ed.,  and    1    I'lull.  Ev.  ch.   10,  sect. 
I,  10th  ed. 


SUBJECTS     OF    EVIDENCE.  481 

was  used   for  this  purpose  at  least  as  early  as  the  9 
Hen.  VII.  (k)x 

254.  2.  The  law  of  England  is  very  slow  in 
recognizing  matters  as  too  notorious  to  require 
proof,  (/)  and  it  is  not  easy  to  lay  down  a  definite 
rule  respecting  them.  In  Richard  Baxter's  case,  in 
1685,  (ni)  the  defendant  was  charged  with  having 
published  a  seditious  libel ;  and  Jefferies,  C.  J.,  is 
reported  to  have  told  the  jury, — "  It  is  notoriously 
known  there  has  been  a  design  to  ruin  the  king 
and  nation ;  the  old  game  has  been  renewed, 
and  this"  (the  defendant)  "has  been  the  main 
incendiary."  The  iniquity  of  such  a  direction  as  this, 
supposing  it  correctly  reported,  needs  no  comment. 
The  language  of  Wilde,  C.  J.,  in  the  case  of  Ernest 
Jones,  (11)  who  was  indicted  for  making  a  seditious 
speech  at  a  public  meeting,  seems  to  throw  some  light 
on  this  subject  The  Lord  Chief  Justice  there  told 
the  jury,  that  they  should  take  into  consideration  what 
they  knew  of  the  state  of  the  country  and  of  societv 
generally,  at  the  time  when  the  language  was  used. 
What  might  be  innoxious  at  one  time,  when  there  was 
a  general  feeling  <>|  contentment,  might  be  very  dan- 
gerous al  another  time  when  a  different  feeling  pre- 
vailed. Bui  thai  they  could  not,  withoul  prool  of 
them,  take  into  their  consideration  particular  fans  at- 
tending the  particular  meeting  al    which  the  words 

(i-j  II.!,  9  II.  VII.  14  I',  pi.  1.  i"D  n  II".  St.  Tr. 

(/;  See  Introd.  pt.  2.  £  38.  (»>  1  MS. 

'  See  cast     1  ited  ante,  note  r,  pa 
S<  hi.  iingei    \    I  [exter,  ,  ■,    N.  V.   S'i;><-i  ior  I  «   v. 

Morphy,    ;  |   Iowa,    1      .    State  v    Lip  u  omb,     \    Md    ■  • 
Donald   v.  Kirby,  ;    1 1  .  .   Bond   v.  P 

Killebrew   v    Murphy,  ;  Id    5  [6;  Ri<  e  v   Sho 
Smither  v.  Flournoy,    r;    \  Buchanan  v   VVhitam,  36 

Ind.  257  ;  Bowie  v.  City  oi  Kan  as,  57  Mo 
3' 


48 J        PRIMARY    RULES     OF    EVIDENCE 

were  spoken.     And  this  seems  confirmed  by  a  ease  of 
R.  v.  Dowling  decided  the  same  year.  (0)1 

255.  The  rejection  of  evidence  on  the  ground  of 
'remoteness,  or  want  of  reasonable  connection  between 
the  principal  and  evidentiary  facts,  has  been  shown,  in 
another  place,  to  be  a  branch  of  that  fundamental 
principle  of  our  law,  which  requires  the  best  evidence 
to  be  adduced.  (/>)  The  ruje  has  obviously  no  ap- 
plication where  the  evidence  tendered  is  either  direct, 
or,  though  circumstantial,  is  necessarily  conclusive 
upon  the  issue.  But  whether  a  given  piece  of  pre- 
sumptive evidence  is  receivable,  or  ought  to  be  re- 
jected on  this  ground,  is  not  unfrequently  a  question 
of  considerable  difficulty.  Some  instances  illustrative 
of  this  have  already  been  given,  (y)  to  which  may  be 
added  the  following.  On  a  question  between  landlord 
and  tenant,  as  to  the  terms  on  which  the  premises 
were  held,  although  it  might  assist,  to  know  the  terms 
on  which  the  landlord  usually  let  to  his  other  tenants, 
not  connected  with  the  tenant  whose  case  is  under 
consideration,  the  evidence  would  be  rejected  as  too 
remote,  (r)  So  in  an  action  for  goods  sold  and  de- 
livered, to  which  the  defense  was  that  the  sale  was 
subject  to  a  certain  condition  ;  it  was  held  not  com- 
petent to  the  defendant  to  call  witnesses,  to  prove 
that  the  plaintiff  had  made  contracts  with  other  per- 
sons subject  to  that  condition.  (V) 

(0)  MS.,  cited   Arch.    Cr.    PI.    147,  See    Spenceley  v.  De  Willott,  7  East, 

15th  ed.,  Centr.   Cr.  Court.     See   fur-  no. 

ther,  Moody  v.  The   London  &  Brigh-  (s)  Hollingham  v.  Head,  4  C  B.,  N. 

ton    Railw.   Co.,   1    15.  &  S.  290,  293  ;  S.  388.     Where,  in  an  action  against 

Parker  v.  Green, 2  Id.  299  ;  Ilolcombe  A.,  to  recover  the  value  of  work  done 

v.  Ilewson,  2  Camp.  391.  by  the   plaintiff  to  certain   houses,  on 

(/)  Bk.  1,  pt.  I,  £$5  88,  90  et  seq.  the    order    of    B.,   the   question    was, 

(q)  Id.  §  92.  whether  A.  or  B.  was  liable  as  princi- 

(r)  Carter   v.   Pryke,    1    Peake,    95.  pal  ;  evidence  was   held  to   be  admis* 

1  See  ante,  note  1,  page 


SUBJECTS     OF    EVIDENCE.  483 

But  acts  unconnected  with  the  act  in  question  are 
frequently  receivable  to  prove  psychological  facts,  such 
as  intent.  (7)  Thus  on  an  indictment  for  uttering  a 
forged  bank  note,  evidence  is  admissible  that  the 
accused  has  uttered  similar  forged  notes,  &c.  (11) 
And  in  a  recent  case  it  was  said,  that  it  seemed  clear, 
on  principle,  that  when  the  fact  was  proved  that  the 
prisoner  had  done  the  act  charged;  and  the  only  re- 
maining question  was  whether,  at  the  time  he  did  it, 
he  had  a  guilty  knowledge  of  the  quality  of  his  act, 
or  acted  under  a  mistake  ;  evidence  was  admissible  to 
show  that  he  was,  at  that  time,  pursuing  a  course  of 
similar  acts,  and  thereby  to  raise  a  presumption  that, 
in  the  case  in  question,  he  was  not  acting  under  a  mis- 
take, (v) 

256.  One  of  the  strongest  instances  of  the  bene- 
ficial application  of  the  principle  in  question,  is  to  be 
found  in  the  rules  respecting  the  admissibility  of  evi- 
dence to  character.  That  the  general  reputation  and 
previous  conduct  of  a  litigant  party  or  witness,  is  often 
of  immense  weight  as  natural  or  moral  evidence,  as 
tending  to  raise  a  presumption  that  his  action  or  de- 
fense is  well  or  ill-founded,  or  that  the  evidence  which 
he  gives  is  true  or  false, must  be  obvious.  Bui  on  the 
other  hand,  the  exposing  every  man  who  comes  into 
our  courts  of  just  ice,  to  have  every  action  o\  his  life 
publicly  scrutinized,  would  keep  most  nun  out  of  them 

To  admit  chain  in   evidence  in  every  I   r  e,  <>i    tO 

reject  il  in  every  case,  would  be  equally  fatal  to  justice; 

and  to  draw  the  line     to  define  with  precision  where 

tible,  to  prove  that  A.  had  given  01  Tnfra,  pt.  9,  ch.  e 

to  persons,  other  than  tin-  plaintiff,  to  (v)  Per  cur..  I:.  :■.  Pram  It,  I     Rep., 

do  work  at  the  Bame  hou  es.     Wood  128,  131  ;  43  I..  [.,  M.  C  97, 

ward   v.   Buchanan,  I..  Rep.,  5  ',»    B,  i 

285.  (x)  Fost.  Cr.  I.avr,  246. 
(/)  R.  v.  Weeks,  1  Leigh  &  C.  18. 


4S4        PRIMARY    RULES    OF    EVIDENCE. 

it  ought  to  be  received,  and  where  it  ought  to  be  re- 
jected -  is  as  embarrassing  a  problem  as  any  legislator 
can  be  called  upon  to  solve,  (jy) 

257.  With  respect  to  the  character  of  parties  to  a 
cause,  the  law  of  England  meets  the  difficulty,  by  mak- 
ing a  distinction  between  cases  where  their  character 
ought  to  be  supposed  to  be  in  issue,  and  where  it  ought 
not.  According  to  the  general  rule,  upon  the  whole 
probably  a  just  one,  it 'is  not  competent  to  give  evi- 
dence of  the  general  character  of  the  parties  to  foren- 
sic proceedings,  much  less  of  particular  facts  not  in 
issue  in  the  cause,  with  the  view  of  raising  a  presump- 
tion either  favorable  to  one  party  or  disadvantageous 
to  his  antagonist,  (z)  This  principle  has  been  carried 
so  far  that,  on  a  prosecution  for  an  infamous  offense, 
evidence  of  an  admission  by  the  accused,  that  he  was 
addicted  to  the  commission  of  similar  offenses,  was  re- 
jected as  irrelevant.  (<z) 

258.  But  where  the  very  nature  of  the  proceedings 
is  such,  as  to  put  in  issue  the  character  of  any  of  the 
parties  to  them,  a  different  rule  necessarily  prevails ; 
and  it  is  not  only  competent  to  give  general  evidence 
of  the  character  of  the  party  with  reference  to  the 
issue  raised,  but  even  to  inquire  into  particular  facts 
tending  to  establish  it.  (b)  Thus,  on  an  indictment 
for  keeping  a  common  bawdy-house,  or  common  gam- 
ing-house, (V)  or  for  being  a  common  barretor,  (d)  the 

(;)  Even   Bentham,  3  Jud.  Ev.  193,  (b)  Bull.  N.  P.  295. 

admits  the  difficulties  of  tins  subject,  (c)  Clark  v.  Periam,  2  Atk.  339. 

and    says   that    some   of    them    seem  (</)  2   Stark.   Ev.  304,  3rd   ed.      In 

scarce   capable   of    receiving  solution  cases    of    barretry,    however,     notice 

but  in  the  Gordian  style.  must  be  given  to  the  defendant,  of  the 

(z)  Phill.  &  Am.  Ev.  488-91  ;  r  Phill.  particular  acts  of  barretry  intended  to 

Ev.  502-50S,  loth  ed.  ;  King  v.  Fran-  be  relied   on  at  the  trial.     Id. ;  B.  N 

cis,  3  Esp.  117,  per  Lord  Kenyon.  P.    296;    Goddard   v.  Smith,  6    Mod 

(a)  R.   v.  Cole,    Mich.  i3io,  by   all  261,  262  ;  R.  v.  Rowton,  1  Leigh  &  C 

the  judges      Phill.  &  Am.  Ev.  499  ;   1  520,  542,  per  Willes,  J. 
Phill.  Ev.  50S,  10th  ed. 


SUBJECTS     OF    EVIDENCE.  4S5 

prosecutor  may  give  in  evidence,  any  acts  of  the  de- 
fendant which  support  the  general  charge.  So,  where 
the  issue  is  whether  a  party  is  non  compos  mentis, 
proof  may  be  adduced  of  particular  acts  of  insanity. 
(e)  In  actions  for  seduction,  (/)  and  criminal  con- 
versation, (g)  while  that  species  of  action  existed,  (/*) 
the  character  of  the  female  for  chastity  is  directly  in 
issue,  and  may  be  impeached  either  by  general  evidence 
of  misconduct,  or  proof  of  particular  acts  of  it.  So,  a 
charge  of  rape,  (7)  or  of  assault  with  intent  to  com- 
mit rape,  (/•)  brings  the  question  of  the  chastity  of 
the  female  so  far  in  issue,  that  it  is  competent  to  the 
accused  to  give  general  evidence  of  her  previous  bad 
character  in  this  respect  ;  or  even  to  show  that  she 
has  been  criminally  connected  with  himself.  (/)  But 
the  authorities  are  not  agreed  as  to  whether,  and  under 
what  circumstances,  he  will  he  allowed  to  prove  par- 
ticular aets  of  unchastity  committed  by  her  with  other 
men.  (/;/) 

259.  Although  in  criminal  prosecutions  in  gen- 
eral, the  character  of  the  accused  is  not  in  the  first  in- 
stance put  in  issue,  still  in  all  eases  where  the  direct 
object  of  the  proceedings  is  to  punish  the  offense, — 
such  as  indictments  for  treason,  felony,  or  misde- 
meanor; (u)  and  is  not  merely  the  recovery  of  a  pen- 

(«»)  Clarkz/.  Periam,  2  Atk.  340.  &  P           .    r                                v  P. 

|  /  1  Hull.  &  Am.    Ev.  1    ■    1    , ;   1 

Phitl.  I               [Oth  ed,  ;  1           d   v.  (*)  Phill.  &   Am.   1               I  PhilL 

M             [Camp,  160  [  Dodd        N01  Ev.   505,    toth    ed   ;   R                  e,  2 

11  .  3  Id.  517,  Verryw.  Watkins,  7  C.  Stark.  244. 

P.  308.  (/)  R.   .-.   Martin,  6  1     8    P 

B.N.P.296;  t  Selw.  N.  P. 26,  R.    v.   Aapinwall,  3   Stark.   1 

9th  ed. ;  II  M.i  v,  Paucett,  2  1     •  :  6  ■.  1 

pei    Lord    Kenyon,  C.    I.,   R.       B  1  {m)           Tajri     I  ■  d.          '.-6   ami 

ker,  3  ' '.  &  P.  ;  ■■,,  per  Park,  J,  .  4th  ed. 

bk.  2,  pt    r.  cli.  2  (•!)  2  SI     -I           (,-'.   PhilL 

(i)  Phill    &     \i,i.   Ev.  1    , .   1    Phill.  &   Am,    Ev.  490;  I  1     IL    Ev.  50^ 

Ev.  505,  loth  ed. ;   K.    '    '              61  10th  cd. 


486        PRIMARY    RULES     OF    EVIDENCE. 

alty,  (tf)  it  is  competent  to  him  to  defend  himself  by 
proof  of  previous  good  character,  reference  being  had 
to  the  nature  of  the  charge  asrainst  him.  "  On  a 
charge  of  stealing,"  says  a  well-known  treatise  on  the 
Law  of  Evidence,  (/)  "  it  would  be  irrelevant  and 
absurd  to  inquire  into  the  prisoner's  loyalty  or  human- 
ity ;  on  a  charge  of  high  treason,  it  would  be  equally 
absurd  to  inquire  into  his  honesty  and  punctuality  in 
private  dealings.  Such  evidence  relates  to  principles 
of  moral  conduct  which,  however  they  might  operate 
on  other  occasions,  would  not  be  likely  to  operate 
on  that  which  alone  is  the  subject  of  inquiry,  it  would 
not  afford  the  least  presumption  that  the  prisoner 
might  not  have  been  tempted  to  commit  the  crime 
for  which  he  is  tried,  and  is  therefore  totally  inappli- 
cable to  the  point  in  question." 

260.  Few  subjects  are  more  liable  to  be  misunder- 
stood than  character  evidence.  On  an  indictment  for 
stealing  from  A.,  for  instance,  proof  that  on  other 
occasions,  wholly  unconnected  with  the  transaction  in 
question,  the  accused  acted  the  part  of  an  honest,  or 
even  liberal  and  high-minded  man,  in  certain  transac- 
tions with  B.  and  C, — even  assuming  that  it  would, 
to  a  certain  extent,  render  improbable  the  supposition 
of  his  having  acted  with  felonious  dishonesty  towards 
A., — is  too  remote  and  insignificant  to  be  receivable  in 
evidence.  The  inquiry  should  be  as  to  his  general 
character  among  those  who  have  known  him,  with  a 
view  of  showing  that  his  general  reputation  for  hon- 
esty is  such  as  to  render  unlikely  the  conduct  imputed 
to  him.  And  even  the  individual  opinion  of  a  wit- 
ness, founded  on  his  own  personal  experience  of  the 

(o)  Phill.  &  Am.  Ev.  48S  j  1   Phill.  (p)  Phill.  &  Am.   Ev.  490,  491  ;   I 

Ev.  502,  10th  ed.     See  also  Att.-Gen.       Phill.  Ev.  506,  10th  ed. 
v.  Radluff,  10  Exch.  84. 


SUBJECTS    OF    EVIDENCE.  487 

disposition  of  the  accused,  is  inadmissible.  (^)  "  It 
frequently  occurs,  indeed,"  says  the  author  last  quoted, 
"  that  witnesses,  after  speaking  to  the  general  opinion 
of  the  prisoner's  character,  state  their  personal  experi- 
ence and  opinion  of  his  honesty  ;  but  when  this  state- 
ment is  admitted,  it  is  rather  from  favor  to  the  pris- 
oner, than  strictly  as  evidence  of  general  character."  (r) 
261.  Whenever  it  is  allowable  to  impeach  the 
character  of  a  party,  it  is  competent  to  the  other  side 
to  give  evidence  to  contradict  the  evidence  adduced.  (V) 
And  although  in  a  criminal  prosecution  evidence  cannot 
in  the  first  instance  be  given  to  show  that  the  accused 
has  borne  a  bad  character,  still,  if  he  sets  up  his  char- 
acter as  an  answer  to  the  charge  against  him,  he  puts 
it  in  issue,  and  the  prosecutor  may  encounter  his  evi- 
dence either  by  cross-examination  or  contrary  testi- 
mony. (/)  In  R.  v.  Wood  (u)  the  prisoner,  who  was 
indicted  for  a  highway  robbery,  called  a  witness,  who 
deposed  to  having  known  him  for  years,  during  which 
time  he  had,  as  the  witness  said,  borne  a  good  charac- 
ter. On  cross-examination  it  was  proposi  d  to  ask  the 
witness  whether  he  had  not  heard  that  the  prisoner 
was  suspected  of  having  committed  a  robbery,  which 
had  taken  place  in  the  neighborhood  some  years 
before.  This  was  objected  to  as  raising  a  collateral 
1  lie :  bin  Parke,  B.,  overruled  the  objection,  saying, 
"  The  qui  stion  is  not  whether  the  prisoner  was  .uuilty 
of  tli.it  robbery,  but  whether  he  was  suspected  of'hav- 

ig)  R,  v.  Ronton,  34   I,.  J.,  M.  C.  Camp.  \6o\   Dodd  v.  N               amp. 
57;    1    Leigh   &   C   520;   by  eleven 

judges  a            two.  (/)  B                               i  .  I  .  M.  C. 

-     Phill.  .v   Am.  Ev.  491  ;  1    Phill.  57;  I  1 

Ev.  506,  lotti  1  d.  ■••  I'          '                              s''e  ■l*» 

(s)  R.  7'.   Murphy,  19  H  ■  ;   .   i"::- 

724;  I!.    N     P.   2</j  ;   R.    v.  Clarke,   2  2</i  ;  2  Ru       I   I    786, 

Stark.   241;     Bamfield     v.    .V.  '-»'.  MS. ;  and  3 

Jurist,  225. 


488        PRIMARY    RULES     OF    EVIDENCE. 

ing  been  implicated  in  it.  A  man's  character  is  made 
up  of  a  number  of  small  circumstances,  of  which  his 
hemg  suspected  of  misconduct  is  one."  The  question 
was  accordingly  put,  and  the  prisoner  convicted. 

But  a  ;  it  is  not  competent  for  the  accused  to  show 
particular  acts  of  good  conduct,  the  prosecutor  can- 
not, in  general, go  into  particular  cases  of  misconduct ; 
the  only  exception  to  this  rule,  having  been  introduced 
by  the  statute  6  and  7  Will.  4,  c.  1 11,  which  enacts 
that  if  upon  the  trial  of  any  person  for  any  subsequent 
felony,  not  punishable  with  death,  he  shall  give  evi- 
dence of  his  good  character,  it  shall  be  lawful  in 
answer  thereto,  to  give  evidence  of  his  conviction  for 
a  previous  felony,  (v)  And  it  has  been  held  that  a 
case  is  equally  within  this  enactment,  whether  the 
evidence  to  character  was  given  by  witnesses  called 
on  the  part  of  the  accused,  or  was  extracted  by  cross- 
examination  from  witnesses  for  the  prosecution,  (x) 
In  practice,  however,  we  seldom  see  evidence  adduced 
to  rebut  evidence  as  to  character;  although  perhaps 
the  interests  of  justice  would  be  advanced,  if  this  were 
done  more  frequently. 

262.  Witnesses  to  the  characters  of  parties  are  in  gen- 
eral treated  with  great  indulgence — perhaps  too  much. 
Thus,  it  is  not  the  practice  of  the  bar  to  cross-examine 
such  witnesses,  unless  there  is  some  specific  charge  on 
which  to  found  a  cross-examination,  (y)  or  at  least 
without  giving  notice  of  an  intention  to  cross-examine 
them  if  they  are  put  in  the  box.  The  judges  also  dis- 
courage the  exercise  of  the  undoubted  right  of  prose- 

(t)  A  subsequent   act,  the    14  &   15  such  person  for  a  previous  offense,  01 

Vict.  c.  19,  s.  <).  provided  that  if,  upon  offenses.     But    this    section    was    re- 

the  trial  of  any  person   for  an  offense,  pealed  by  24  &  25  Vict.  c.  95. 
such  person   should  give  evidence  of  (x)  R.  v.  Shrimpton,  2   Den.  C.  C 

his  good  character,  it  should  be  lawful  319;  3  Car.  &  K.  373. 
for  the  pro,ecutor,  in   answer  thereto,  (y)   R.     v.     Iiodgkiss,     7    C.    &    P 

to  give  evidence  of  the  conviction  of  298. 


SUBJECTS     OF    EVIDENCE.  489 

curing  counsel,  to  reply  on  their  testimony;  (z)  and 
the  most  obvious  perjury  in  giving  false  characters 
for  honesty,  &c,  is  every  day  either  overlooked,  or 
dismissed  with  a  slight  reprimand.  But  surely  this  is 
mercy  out  ol  place.  If  mendacity  in  this  shape  is  not 
to  be  discouraged,  tribunals  will  naturally  be  induced 
cither  to  look  on  all  character  evidence  with  suspicion, 
or  to  attach  little  weight  to  it.  Now  there  arc  many 
cases,  in  which  the  most  innocent  man  has  no  an- 
swer to  oppose  to  a  criminal  charge,  but  his  reputa- 
tion ;  and  to  deprive  this  of  any  portion  of  the  weight 
legitimately  due  to  it,  is  to  rob  the  honest  and  upright 
citizen  of  the  rightful  rew?rd  of  his  good  conduct. 
In  this,  as  in  many  other  instances,  the  old  legal 
maxim  holds  good,  "  Minatur  innocentes  qui  parch 
noccntibus."  (a)  It  has  accordingly  happened 
that  judges,  knowing  fr  m  experience  how  little 
weight  is  due  to  the  character  evidence  so  often 
received,  have  occasionally  told  juries  that  character 
evidence  is  not  <o  ■  ■  taken  into  consideration  unl< 
a  donlit  exists  on  the  other  evidence  a  position  per- 
fectly true  in  the  sense  that  if,  on  the  facts,  the  jury 
believe  the  accused  guilty,  t<>  .i«  quil  him  out  <>f  regard 
for  his  good  character  would  be  a  violation  oi  their 
oath;  hut  utterly  false  and  illegal,  if  its  meaning  be, 
that  character  evidence  is  not  to  be  considered,  until 
the  guilt  or  innocence  of  the  accu  ed  is  firsl  detei 
mined  on  1  In  tacts.  The  use  of  character  evidence  is 
to;,  it  the  jury  in  estimating  the  value  ol  the  evi- 
dence broughl  against  tip-  accu  ed;  and  we  cannot 
dismiss  this  subject  without  directing  attention  to  the 


(z)  R.  v.  Stannard,  7  C.  &  P.  673      MM        I        |;       11     •■  Whiting 
'I'll. it    •!,  •    ri^ht    «  I*.  771. 

and  the  reaolulionsof  the  judg  .'       ;  iJenk.C«rt 

3.  <  '■'■     :) 


490        PRIMARY    RULES     OF    EVIDENCE. 

shrewd  observations  of  C.  J.  Holt :  (J?)  "  A  man  is  not 
burn  a  knave  ;  there  must  be  time  to  make  him  so, 
nor  is  he  presently  discovered  after  he  becomes  one. 
A  man  may  be  reputed  an  able  man  this  year,  and  yet 
be  a  beggar  the  next."  1 

263.   With  respect  to  the   character  of  witnesses. 


(&)  R.  v.  Swendsen,  14  Ho.  St.  Tr.  596. 

1  In  a  civil  suit  evidence  of  good  character  is  not  admis- 
sible to  rebut  imputations  of  misconduct  or  fraud.  Williams 
v.  Waters,  36  Ga.  459  ;  Montgomery  v.  Hunt,  5  Cal.  366 ; 
Boardman  v.  Woodman,  47  N.  H.  120;  Ward  v.  Henderson, 
5  Port.  (Ala.)  382;  Church  v.  Drummond,  7  Ind.  17;  Revill 
v.  Pettit,  3  Mete.  (Ky.)  314  Morris  v.  Hazlewood,  1  Bush. 
(Ky.)  20S  ;  Potter  v.  Webb,  6  Me.  (6  Greenl.)  14;  Thayer  v. 
Boyle,  30  Me.  475;  Gutzwiller  v.  Lack  man,  23  Mo.  168; 
Porter  "  Seiler,  23  Pa.  St.  424;  Fowler  v.  /Etna  Ins.  Co.,  6 
Cow.  382.  And  see  generally  as  to  character,  State  v.  Wells, 
1  X.  J.  L.  (Coxe)  124;  Smith  v.  Plunkett,  1  Strobh.  372; 
Wright  v.  McKee,  37  Vt.  161  ;  Commonwealth  v.  Sacket,  22 
Pick.  394  ;  State  v.  Cresson,  38  Mo.  372  ;  People  v.  Bodine,  1 
Edm.  (N.  Y.)  Select.  Cases,  36  ;  State  v  O'Niel,  7  Ired.  (N. 
C.)  L.  251  ;  Ackley  v.  People,  9  Barb.  (N.  Y.)  609;  State  v. 
Upham,  38  Me.  261;  Humphrey  v.  Humphrey,  7  Conn.  116; 
People  v.  Sosephis,  7  Cal.  129;  Ketland  v.  Bissett,  1  Wash. 
144;  Pratt  v.  Andrews,  4  N.  Y.  (4  Comst.)  493;  Goldsmith  v. 
Picard,  27  Ala.  142  ;  Rosenbaum  v.  State,  33  Id.  354;  Thomp- 
son v.  Church,  1  Root  (Conn.)  312;  Boatright  v.  Porter,  3? 
Ga.  130;  Johnson  v.  Howard,  1  Har.  &  M.  (Md.)  281;  Boyn- 
ton  v.  Kellogg,  3  Mass.  189;  Bruce  v.  Priest,  5  Allen  (Mass.) 
100.  Whittier  v.  Franklin,  46  N.  H.  23;  Gandolfo  v.  State, 
1  1  Ohio  St.  114  ;  Anderson  v.  Long,  10  Serg.  &  R.  (Pa.)  55  ; 
S.  P.  Atkinson  v.  Graham,  5  Watts  (Pa.)  411;  State  v. 
O'Connor,  31  Mo.  389  ;  People  v.  Cole,  4  Park.  (N.Y.)  Cr.  35  ; 
State  v.  Dalton,  27  Mo.  13;  Bennett  v.  State,  8  Humph. 
(Term.)  118;  Frazier  v.  Pennsylvania  R.  R.  Co.,  38  Pa.  St. 
104;  United  States  v.  Roudebush,  1  Bald.  514;  Felix  v.  State, 
18  Ala.  720;  People  v.  Milgate,  5  Cal.  127;  Keener  v.  State, 
18  Ga.  194;  Epps  v.  State,  19  Id.  102;  Engleman  v.  State,  2 
Ind.  92  ;  State  v.  Ford,  3  Strobh.  (S.  C.)  517  ;  Maury  v.  Tal- 
mage,  2  McLean,  157;  Searcy  v.  Fearn,  2  Stew.  &  P.  (Ala.) 
128;  Allen  v.  Prather,  35  Ala.  169. 


SUBJECTS     OF    EVIDENCE.  491 

The  credibility  of  a  witness  is  always  in  issue  ;  and  a  - 
cordingly  general  evidence  is  receivable,  to  show  that 
the  character  which  he  bears  is  such  that  he  is  unwor- 
thy to  be  believed,  even  when  upon  his  oath.  (7)  But, 
until  recently,  evidence  of  particular  facts,  or  particular 
transactions,  could  not  be  received  for  this  purpose  ; 
both  for  the  reasons  already  assigned,  (d)  and  also 
because  such  evidence  would  raise  a  collateral  issue, 
i.  e.,  an  issue  foreign  to  that  which  the  tribunal  is  sit- 
ting to  try.  (c)  The  witness  might  indeed  be  ques- 
tioned as  to  such  facts  or  transactions ;  but  he  was 
not  always  bound  to  answer  ;  and  if  he  did,  the  party 
questioning  was  bound  to  take  his  answer,  and  could 
not  call  evidence  to  contradict  it.  {/)  But  the  law 
on  this  subject  was  modified  as  to  civil  cases,  by  the 
17  &  18  Vict.  c.  125,  s.  25,  which  enacts,  that  "  A  wit- 
ness in  any  cause  may  be  questioned  as  to  whether  he 
has  been  convicted  of  any  felony  or  misdemeanor, and, 
upon  being  so  questioned,  if  he  either  denies  the  fact, 
or  refuses  to  answer,  it  shall  be  lawful  for  the  opposite 
party  to  prove  such  conviction;  and  a  certificate  con- 
taining the  substance  and  effect  only  (omitting  the 
formal  part )  of  the  indictment  and  conviction  for  such 
offense,  purporting  to  be  signed  by  the  clerk  <>l  the 
court,  or  other  officer  having  the  custody  oi  the  re< 
on  Is  of  the  court  where  the  offendei  was  .convicted,  01 
by  the  deputy  of  such  clerk  or  officer,  Ac,  shall,  upon 
proof  oi  t  he  idenl  it  \  of  t  he  per  1  »n,  be  suffi(  ienl  <\  1 
deiiee  of  the  said  conviction;  withoul  prooi  ol  the  sig- 
nature or  official  1  hara<  tei  61  the  person  appearing  to 
Rave  signed  the  same."     And  this  provi  i  m  has  since 


(<•)  R.  v.    Brown,    L.  Rep.,  I    CO  32    Id     I  B     S. 

70.  1  ■  I      kci 

(d)  $%  256,  200,  261.  '       '  ■'      II. 

(*)  13  Ho. St. Ti. an;  16 Id. 246-7;         (/)  Suprat  >.    I..  2. 


492        PRIMARY    RULES    OF    EVIDENCE. 

been  extended  to  criminal  cases,  by  the  28  Vict.  c.  18, 
ss.  i  and  6. ' 

264.  In  determining  the  relevancy  of  evidence  to 
the  matters  in  dispute  in  a  cause,  it  is  of  the  utmost 
importance  to  remember,  that  the  question  is  whether 
the  evidence  offered  is  relevant  to  any  of  them ; 
because  evidence  not  admissible  in  one  point  of  view, 
or  for  one  purpose,  may  be  perfectly  admissible  in 
some  other  point  of  view,  or  for  some  other  purpose. 
1.  Evidence  not  admissible  to  prove  some  of  the 
issues  or  matters  in  question,  may  be  admissible  to 
prove  others  ;  evidence  not  admissible  in  causa,  may 
be  most  valuable  as  evidence  extra  causam ;  and  evi- 
dence not  receivable  either  in  proof  of  the  facts  in  dis- 
pute, or  to  test  the  credit  of  witnesses,  &c.,  may  be 
important  as  showing  the  amount  of  damage  sus- 
tained by  a  plaintiff,  &c.  2.  Evidence  not  admissible 
in  the  first  instance,  may  become  so  by  matter 
subsequent.  Thus,  in  a  suit  between  A.  and  B.,  the 
acts  or  declarations  of  C.  are  prima  facie  not  evi- 
dence against  B.,  and  ought  to  be  rejected ;  but 
if  it  be  shown  that  C.  was  the  lawfully  constituted 
agent  of  B.,  either  generally,  or  with  respect  to  the 
special  matter  in  question,  his  acts  or  declarations 
become  evidence  against  his  principal.  So  a  litigant 
party  may,  by  his  mode  of  conducting  his  case,  render 
that  evidence  for  his  adversary,  which  otherwise  would 
not  be  so.  Thus,  although  a  man's  own  verbal  or 
written  statement  cannot  be  used  as  evidence  for  him  ; 
yet  if  his  adversary  puts  such  a  statement  in  evidence 

1  United  States  Express  Co.  v.  Hutchins,  58  111.  44;  Pope 
v.  Dodson,  Id.  360  ;  Whitten  v.  State,  47  Ga.  297  ;  Matliilde  v. 
Levy,  24  La.  Ann.  421;  Carver  v.  Louthain,  38  Ind.  530, 
Carner  v.  Charter  Oak  Ins.  Co.,  1  Abb.  (N.  Y.)  App.  Dec. 
316;  Rudshill  v.  Slingerland,  18  Minn.  3S0  ;  Graham  v 
Chrystal,  2  Abb.  (X.  V.j  App.  Dec.  263. 


SUBJECTS     OF    EVIDENCE.  403 

against  him,  he  is  entitled  to  have  the  whole  of  it 
proved ;  and  the  jury  may  estimate  the  probability  of 
any  part  of  it  which  makes  in  his  favorite.  3.  Evi- 
dence may  be  admissible  to  prove  a  subalternate 
principal  fact,  which  might  not  be  admissible  to  prove 
the  immediate  fact  in  issue.  This  is  of  course  subject 
to  the  rule  requiring  the  best  evidence  ;  for  the  con- 
nection between  the  subalternate  principal  fact  and 
the  ultimate  evidentary  fact  must  be  as  open,  visible, 
and  unconjectural  in  its  nature,  as  that  between  the 
subalternate  principal  fact  and  the  fact  directly  in 
issue.  In  all  cases,  as  has  been  well  observed,  the 
ultimate  presumption  must  be  connected  either 
mediately  or  immediately  with  facts  established  by 
proof,  (g)1 

{g)  2  Ev.  Poth.  332. 
1  And  see  cases  cited,  ante,  note  1,  p.  352. 


494        PRIMARY    RULES     OF    EVIDENCE. 


CHAPTER  II. 

THE     BURDEN    OF    PROOF. 

PARAGRAPH. 

The  burden  of  proof,  or  onus  probandi 265 

Natural  principles  by  which  it  is  governed      ......  266 

Legal  rules  affecting 267 

Test  for  determining       ..........  268 

Principles  regulating 269 

1.  General  rule — lies  on  the  party  who  asserts  the  affirmative         .  269 

Fallacy  of  the  maxim  that  "  a  negative  is  incapable  of  proof"    .  270 

Difference  between  negative  averments  and  negatives     .         .  271 
Determined  by  the  affimative  in  substance,  not  the  affirmative 

in  form 272 

2.  Shifted  by  presumptions  and  prima  facie  evidence       .         .         .  273 

3.  Lies  on  the  party  who  has  peculiar   means  of  knowledge       .         .  274 

4.  Discrepancy  in  the  authorities  as  to  the  extent  of  this  rule         .  275 

265.  The  burden  of  proof,  or  onus  probandi,  is# 
governed  by  certain  rules,  having  their  foundation  in 
principles  of  natural  reason,  to  which  an  artificial 
weight  is  superadded  by  the  reason  and  policy  of  the 
law  ;  (a)  and  in  order  to  form  clear  notions  on  this 
subject,  the  best  course  will  be  to  consider  it,  first,  in 
the  abstract,  and  afterwards  as  connected  with  juris- 
prudence. 

266.  Every  controversy  ultimately  resolves  itself 
into  this,  that  certain  facts  or  propositions  are  asserted 
by  one  of  the  disputant  parties,  which  are  denied,  or 
at  least  not  admitted,  by  the  other.  Now,  where  there 
are  no  antecedent  grounds  for  supposing  that  which  is 
asserted  by  the  one  party,  is  more  probable  than  what  is 
denied  by  the  other,  and  the  means  of  proof  are  equally 
accessible  to  both,  the   party  who  asserts  the  fact  01 

(a)   Introd.  pt.  2,  §  42. 


BURDEN    OF    PROOF.  495 

proposition  must  prove  his  assertion, — the  burden  of 
proof,  or  onus  probandi,  lies  upon  him  ;  and  the  party 
who  denies  that  fact  or  proposition,  need  not  give  any 
reason  or  evidence  to  show  the  contrary,  until  his 
adversary  has  at  least  laid  some  probable  grounds  for 
the  belief  of  it.  The  reason  for  this  is  clear.  On  all 
matters  which  are  not  the  subject  either  of  intuitive  or 
sensitive  knowledge,  which  are  either  not  susceptible 
of  demonstration,  or  are  not  demonstrated,  and  which 
are  not  rendered  probable  by  experience  or  reason,  the 
mind  suspends  its  assent  until  proof  is  adduced  ;  and 
where  effective  proofs  are  in  the  power  of  a  party 
who  refuses  or  neglects  to  produce  them,  that  natu- 
rally raises  a  presumption  that  those  proofs,  if  pro- 
duced, would  make.against  him.  It  is  obvious  that, 
in  a  complicated  controversy,  the  burden  of  proving 
some  of  tin-  matters  in  dispute  may  rest  on  one  of  tin- 
parties,  while  the  burden  of  proving  tin-  rest  may  be 
on  his  adversary. 

267.  One  of  the  causes,  as  was  shown  in  the  intro- 
duction to  this  work,  which  renders  artificial  rules  of 
evidence  indispensable  to  municipal  law,  is  the  neces- 
sity for  speedy  action  in  tribunals.  (8)  In  ordei  to  do 
complete  justice,  tribunals  must  be  supplied  by  law 
with  rules  which  shall  enable  them  !<>  dispose,  one 
way  or  the  other,  of  all  questions  which  come  before 

them;  whatever  tin  nature  of  the  inquiry  J  <a  how- 
ever difficult,  or  even  impossible,  it  may  be  to  gel  al  the 
real  truth.  And  as  the  law  take-,  natun  i"i  its  model, 
and  works  on  her  basis  as  far  .is  possible,  the  I,,  1 
mode  of  effecting  this  object  is,  to  attach  an  artificial 
weight  to  the  natural  rules  by  which  the  burden  "l 
proof  ii  governed,  and  t"  enforce  its  ordei  more 
'  strictly  than  is  observed  in  other  controvei  i<  .   Courts 

(b)   Intro.1.  pt.  2,  gg  41.  42. 


49.6        PRIMARY    RULES    OF    EVIDENCE. 

of  justice  arc  not  established  for  the  decision  of  ab- 
stract questions — "  Interest  reipublicse  ut  sit  finis 
litiuni."  i^c)  And  therefore  the  man  who  brings  an- 
other before  a  judicial  tribunal,  must  rely  on  the 
strength  of  his  own  right  and  the  clearness  of  his  own 
proof,  and  not  on  the  want  of  right,  or  the  weakness 
of  proof  in  his  adversary,  (d)  Hence  the  great  prin- 
ciple which  has  been  variously  expressed  by  the 
maxims,  "  Actori  incumbit  onus  probandi ;''  (e)  "  Ac- 
tori  incumbit  probatio  ;  "  (/)  "  Actore  non  probante' 
reus  absolvitur ;"  (^)  "Semper  necessitas  probandi 
incumbit  illi  qui  agit;"  (/j)  "Actore  non  probante: 
qui  covenitur,  etsi  nihil  ipse  prcestat,  obtinebit;"  (Y) 
"  Deficiente  probatione,  remanet,  reus  ut  erat  ante- 
quam  conveniretur,"  (/&)  &c.  The  plaintiff  is  bound 
in  the  first  instance  to  show  at  least  a  prima  facie 
case,  and  if  he  leaves  it  imperfect  the  court  will  not 
assist  him  :  "Melior  est  conditio  rei  quam  actoris ;  " 
(/)  "  Favorabiliores  rei  potius  quam  actorcs  haben- 
tur;"  (m)  "Potior  est  conditio  defendentis ; "  (it) 
"  Cum  sunt  partium  jura  obscura,  reo  favendum  est 
potius  quam  actori  ; "  (o)  "  In  dubio  secundum  reum, 
potius  quam  secundum  actorem  litem  dari  oportet ;  " 
(p)  "  Semper  in  obscuris  quod  minimum  est  sequi- 
mur;"(«7)    "In    obscuris  minimum  est  sequendum," 

(^  Introd.  rt.  2.  |§  41,  43.  {k)  Gibert,  Corp.  Jur.   Canon.  Pro- 

(d)  Vaugh.  60  ;  Show.  1'.  C  221  ;  5      legom.  Pars  Post.  tit.  7,  cap.  2,  §  II, 
T.  R.  Iio(n);   1  H.  &  N.  744;  Mid-      No.  7. 

and  Raihv.  Co.  v.   I'romley,  7  C.i  B.  (/)  4  Inst.  1S0. 

^72;    Doe  d.  Welsh   v.  Langfield,  16  (w)  Dig.  lib.  50,  tit.  17,  1.  125. 

M.  &  W.  («)  Cowp.  343  ;  8  Wheat.  195. 

(e)  4  Co.  71  b.  (o)  Sext.    Decretal,   lib.    5,    tit.    12; 
{/)  Hob.  103.  De  Regulis  Juris,  Reg.  ir. 

{g )  Boi.nier,  Traite    des    Pisuves,  (/)    Heinec.    ad    Pand.   pars  4,    § 

,  and  42.  144.                                           , 

(//;   In-'        h     J,   tit.    20,  §  4;    Dig.  {q)  Dig.   lib.  50,   tit.  17,1.9;  I   Ev. 

lib.  22.  t              21.  Poth.  §  711.     See,  however,  Dig.  lib. 

(0  Cod.  nb.  2,  tit.  1,  1.  4.  50,  tit.  17,  1.  114. 


BURDEN    OF    PROOF.  497 

(r)  &c.  Thus  where,  in  an  action  for  goods  sold  and 
delivered  by  a  liquor  merchant,  the  only  evidence  was 
that  several  bottles  of  liquor,  of  what  kind  did  not  ap- 
pear, where  delivered  at  the  defendant's  house,  Lord 
Ellen  borough  directed  the  jury  to  presume  that  they 
were  filled  with  the  cheapest  liquor  in  which  the  plain- 
tiff dealt,  {s)  So  where,  in  an  action  for  money  lent, 
it  appeared  in  evidence  that,  the  defendant  having  asked 
the  plaintiff  for  some  money,  the  plaintiff  delivered  to 
him  a  bank-note,  the  amount  of  which  could  not  be 
proved,  it  was  held  by  the  Court  of  Exchequer  that 
the  jury  were  rightly  directed,  to  presume  it  to  have 
been  for  the  note  of  lowest  amount  in  circulation.  (7) 
When  however  the  defendant,  or  either  litigant  party 
instead  of  denying  what  is  alleged  against  him,  relies 
on  some  new  matter  which,  if  true,  is  an  answer  to  it, 
the  burden  of  proof  changes  sides  ;  and  he  in  his  turn 
is  bound  to  show  a  prima  facie  case  at  least,  and  if  he 
leaves  it  imperfect  the  court  will  not  assist  him: 
"Agere  is  videtur,  qui  exceptione  utitur;  nam  reus  in 
exceptione  actor  est ;"  («)  "  In  exceptionibus  dicendum 
est,  reum  parti  bus  actoris  fungi  oportere ;"  (v)  "  Reus 
cipiendo  lit  actor ;"  (_r)  "  In  genere  quicunque  aliquid 
dicit,  sive  actor  sive  reus,  necesse  est  \i\  probet"  (y) 
ft  is  in  this  sense  that  tin-  maxim, "  Semper  prsesumi- 
tur  pro  negante,"  (2)  and  the  expression  that  the  law 
presumes  against  the  plaintiff's  demand,  (a)  are  to  l' 
understood.  And  although  the  burden  of  proof  must, 
in  the  first  instance,  be  determined  by  the  issues  as 
they  appear  on  the  pleadings,  or  whatever  according 

(/)  Sext,    Decretal,   lib.   5.   tit.  12  ; 

:•  3i-  152.   390 

(s)  (  lunn      ■'.  Pi  .-.•■  y.  i  ' '.am\  lib.  "s.  !•• 

(/)  Lawton   v.              y,  8  Jar.  964          (r)  Matlhfl                   •    .  S,  n.  4. 

(«)  Dig.  lib.  4\.  tit.  1.  I.  1  (i)  '     • 

(7';  Dig.  lib.  23,  tit.  3, 1. 19,  (a)  Clun-.         Pen  f,  I  Camp.  I. 
52 


498        PRIMARY    RULES     OF    EVIDENCE. 

to  the  practice  of  the  court  and  nature  of  the  case  is 
analogous  to  pleadings,  it  may,  and  frequently  does, 
shift  in  the  course  of  a  trial.  On  an  indictment  for 
"libel,  for  example,  to  which  the  defendant  pleads  sim- 
ply not  guilty,  the  burden  of  proof  would  lie,  in  the  first 
instance,  on  the  prosecutor.  But  on  proof  that  the 
document,  the  subject  of  the  indictment,  contained 
matter  libellous  per  se,  and  was  published  by  the  de- 
fandant's  showing  it  to  A.  B.,  the  law  would  presume 
the  publication  malicious,  and  cast  on  the  defendant 
the  onus  of  rebutting  that  presumption.  And  if  he 
were  to  prove  in  his  defense,  that  it  was  shown  to  A.  B. 
under  such  circumstances  as  to  render  it,  prima  facie  a 
confidential  communication,  the  burden  of  proof  would 
again  change  sides,  and  it  would  lie  on  the  prosecutor 
to  prove  malice  in  fact. 

268.  In  order  to  determine  on  which  of  two  liti- 
gant parties  the  burden  of  proof  lies,  the  following  test 
was  suggested  by  Alderson,  B.,  in  Amos  v.  Hughes,  (<£) 
in  1835,  viz.,  "  which  party  would  be  successful  if  no 
evidence  at  all  were  given  ?"  This  test  was  applied  by 
the  learned  Baron  in  subsequent  cases  ;  (V)  and  it  has 
been  adopted  by  other  judges  at  nisi  prius,  (d)  and 
frequently  recognized  by  higher  tribunals,  (e)  As, 
however,  the  question  of  the  burden  of  proof  may  pre- 
sent itself  at  any  moment  during  a  trial,  the  test  ought 
in  strict  accuracy  to  be  expressed  thus,  viz.: — "which 
party  would  be  successful,  if  no  evidence  at   all,  or  no 

(/-/)  1  Moo.  &   R.  464.     See  also  the  (d)  Osborn  v.  Thompson,  2  Moo.  & 

observations    of    the    same   jtu'ge,    in  R.  254  ;  Doe  d.  Worcester  Trustees  v. 

Iluckman   v.  Fernie,  3    M.  &  W.  505,  Rowlands,  9  C.  &  P.  735. 

and  Mills  v.  Barber,  1  Id.  425.  {e)  Barry  v.  Butlin,  2  Moo.  P.  C.  C. 

Belcher  v.  Mcintosh,  8  C.  &  P.  484;  I.eete  v.  The  Grcsham  Life  In 

720;  Ridgway  v.  Eubank,  2   Moo.  &  surance   Society,   15  Jurist,  1161,  &c 

R.  217  ;  Gcach  v.  Ingall,  14  M.  &  W.  See  the  judgment  in  Doe  d.  Caldecotl 

100.  v.  Johnson,  7  Man.  &  Gr.  1047 


BURDEN    OF    PROOF. 


499 


more  evidence,  as  the  case  may  be,  were  given  ;"  (/) 
and  this  of  course  depends  on  the  principles  n  gulating 
the  burden  of  proof.  These  we  now  proceed  to  ex- 
amine more  closely  ;  first  observing,  however,  that  in 
many  cases  the  burden  of  proof  is  cast  by  statute  on 
particular  parties.  (<?)  ' 

(/)  See    Baker  v.   Batt,  2   .Moo.   P.  17  &    iS  Vict.  c.  104,  s.  169  ;  23  &  24 

C.  C.  3T7,  319.  Vict.  c.  22,  s.  30 ;  24  &  25  Vict.  c.  98. 

(g)  See  a  large  number  zollected  in  ss.  9,  io,  11,  16,  17  ;  and  c.  99,  ss.  6, 

Tayl.  Ev.  s-g  345  et  seq.,  4th  ed.  ;  also  7,  S,  &c. 

'  And  see  Barnes  v.  Allen,  1  Abb.  (N.  Y.)  App.  Dec.  11 1  ; 
State  v.  Farr,  33  Iowa,  555  ;  State  v.  Patterson,  45  Vt.  308; 
Byrd  v.  Fleming,  4  Bibb,  143;  Warner  v.  Daniels,  1  Woodb.  cv 
M.  90;  Pennington  v.  Gell,  11  Ark.  212;  Richmond  v.  Aiken, 
25  Vt.  324;  Tannery.  Hughes,  53  Pa.  St.  289;  McAleer  v. 
McMurray,  58  Id.  126;  People  v.  Hessing,  28  111.  410;  Chick- 
ering  v.  Failles,  26  Id.  507  ;  Pratt  \'.  Lamson,  6  Allen  (Mass.) 
457;  Central  Bridge  v.  Butler,  2  Gray  (Mass.)  130;  Common- 
wealth v.  Daley,  4  Id.  209  ;  State  v.  Melton,  8  Mo.  417.  To 
the  contrary,  Burgess  v.  Lloyd,  7  Md.  178.  Treadwell  \ 
Joseph,  1  Sumn.  390;  Winans  v.  Winans,  [9  N.J.  Eq  220; 
Costigan  v.  Mohawk,  &c.  I\.  In.  Co.,  2  I  >en.  i  \.  Y.)  609  ;  Grims 
v.  Tidmore,  8  Ala.  746 ;  Phelps  v.  Hartwell,  1  Mass.  71  ;  Blany 
v.  Sargeant,  Id.  335;  Buckminister  v.  Perry,  4  Id  Phil- 

lips v.  Ford,  9  Pick.  (Ma      1    -/;  Thompson  v.  Lee,  8  Cal.  275  ; 
Nash  v.  I  fall,  4  Ind.  444 ;  McClure  v   Pursell,  6  Id.  330;  St 

on    v.   Marony,  29    III.    532;    Powers   v.    Russell,   1;    Pick. 
(Mass.)  69;  Loring  v.  Steineman,   1    Mete    (Maa  i 

v.  Calmes,  2  Mi    ,  (i    How.)  121 ;   Pusey   v.  Wright,  [i  Pa   Si 

;  Wolcotl  v,  Holcomb,  \i  V  Y.  125;  Zerbe  1  Miller,  16 
Pa  St.  488 ;  Hendei  on  v.  State,  m  rex.  \\  Brandon  v. 
Cabine  .  1  A  la.  155  ;  Spaulding  v.  Harvey,  7  Ind.  r  > :  Hale 
v.  Hazelton,  21  Wis.  320;  Shiels  v.  West,  17  Cal  ;  •  1  :  State 
v.  Knapp,  45  N.  H.  148 ;  Pittsfield  v.  Barnstead,  38  N  II  115  ; 
Brown  v.  Bulkley,  13  N.  J.  Eq  (1  McCart.)4Si ;  rinn  v  Wharl 
1    1.,  7  Cal.  253  ;  Loomi    ■    Greenl,  7  Me.  (7  Greenl.)  Op- 

penheim    v.  Leo  Woolf,    ;    Sandf.   (N.  Y.)  Ch    571;  Frosl    » 

Brown,  2  Bay  (S.  C.)  133;  Ford  v   Simn ,13   I  1    Vnn    [97  ; 

Greal  Wi    tei  n  F    R    Co   \    Ba    >n,  ■    111    [47;   Pad    v   Cha 
man,  16  La.  Ann.  \66\  to  the  contrary,  Southern   In     S    1  Ife 
.    1  1  |-  la.  Cai  ver  v.  H         ,  19  La    \mi.   rat ; 

v    Haven     Copp<        '  DWD,  .)''    ■N'''     !'         '  '  v- 

Baugh,  4  I '  Va.)  '»ii. 


500        PRIMARY    RULES     OF    EVIDENCE. 

269.  1.  The  general  rule  is,  that  the  burden  of 
proof  lies  on  the  party  who  asserts  the  affirmative  of 
the  issue,  or  question  in  dispute — according  to  the 
maxim,  "  Ei  incumbit  probatio,  qui  dicit ;  non  qui 
nog-  t  ;"  (/i)  a  rule  to  which  the  common  sense  of 
mankind  at  once  assents  ;  and  which,  however  occa- 
sionally violated  in  practice,  has  ever  been  recognized 
in  jurisprudence,  (z)  One  of  the  civilians  speaks  of  it 
as  "  Regula  lippis  et  tonsoribus  nota."  (/&) 

270.  Much  misconception  and  embarrassment 
have  been  introduced  into  this  subject,  by  some  un- 
fortunate language  in  which  the  above  principle  has 
been  enunciated.  "  Per  rerum  naturam,"  says  the  text 
of  the  Roman  law,  "  factum  negantis  probatio  nulla 
sit ;  "  (/)  and  our  old  lawyers  lay  clown  broadly, "  It  is  a 
maxim  in  law  that  witnesses  cannot  testify  a  negative, 
but  an  affirmative."  (ni)  From  these  and  similar  ex- 
pressions it  has  been  rashly  inferred,  and  is  frequently 
asserted,  that  "a  negative  is  incapable  of  proof/' — a 
position  wholly  indefensible  if  understood  in  an  un- 
qualified sense.  Reason  and  the  context  of  the  pas- 
sage in  the  Code  alike  show,  that  by  the  phrase  "  per 
rerum  naturam,  &c,"  nothing  more  was  meant,  than 
to  express  the  undoubted  truth  that,  in  the  ordinary 
course  of  things,  the  burden  of  proof  is  not  to  be  cast 
on  the  party  who  merely  denies  an  assertion.  The 
ground  on  which  this  rests  has  been  already  explained  ; 
(71)  and  another  grave  objection  to  requiring  proof  of 

(h)  Dig.  lib.  22,  tit.  3,  1.  2;  1  Stark.  ed. ;  Stark.   Ev.    585-7,  4th  ed.     See 

Ev.  418,  3rd  ed.  ;  5S6,  4th  ed. ;  Phill.  some  other  old  authorities,  supra,  bk. 

&  Am.  Ev.  827.  1,  pt.  2,  §  in,  11.  (g). 

(i)  Voet.  ad  Pand.  lib.  22,  tit.  3,  N.  (k)  Matthseus  de  Prob.  c.  8,  n.  1. 

IO  ;  Vinnius,  Jurisp.  Contract,  lib.  4,  (/)  Cod.  lib.  4,  tit.  19,  1.  23. 

c.  24  ;  Dumat,  Lois  Civiles,  pt.  1,  liv.  (m)  Co.  Litt.  6  b;  2  Inst.  662.     See 

3,  tit.  6,  sect.  1,  S?  6  aid   7;  Bonnier,  also     4    Inst.    279,    and    F.    N.    B, 

Traite   des   Preuves,  .'    2  )  ;    Co.   Litt.  107. 

6  b;  2   Inst.  662;  Gil   .   Ev.   145,4th  («)  Supra,  §  268. 


BURDEN    OF    PROOF.  501 

a  simple  negative  is  its  indefiniteness.  "Words,"  says 
L.  C.  B.  Gilbert,  (0)  "are  but  the  expressions  of  facts ; 
and  therefore  when  nothing  is  said  to  be  done,  noth- 
ing can  be  said  to  be  proved."  "  Negativa  nihil  im- 
plicat ;  "  ( p)  "  Negativa  nihil  pronunt."  (^)  A  person 
asserts  that  a  certain  event  took  place,  not  saying 
when,  where,  or  under  what  circumstances  ;  how  am 
I  to  disprove  that,  and  convince  others  that  at  no 
time,  at  no  place,  and  under  no  circumstances,  has 
such  a  thing  occurred  ?  "  Indefinitum  aequipollet  uni- 
versali."  (r)  The  utmost  that  could  possibly  be  done 
in  most  instances  would  be,  to  show  the  improbability 
of  the  supposed  event;  and  even  this  would  usually 
require  an  enormous  mass  of  presumptive  evidence. 
"Coment  que  les  tcstm,"  it  is  said  in  a  very  old  case 
in  our  books,  (s)  "  disont  par  certein  discretion  c  fait 
ncmy  estre  vray,  uncore  il  est  possible  que  le  fait  est 
vray,  et  les  tesm  scient  rien  de  ceo  ;  car  ils  ne  fur  pas 
al'  temps  de  confecc  psent,  &c."  Hence  the  well 
known  rule  that  affirmative  evidence  is  in  general  bet- 
ter than  negative  evidence.  (/)  But  wlu-n  the  nega- 
tive ceases  to  be  a  simple  one, — when  it  is  qualified  b) 
time,  place,  or  circumstance,-— much  ol  this  objection 
is  removed  ;  and  proof  of  a  negative  may  very  rea 
mably  be  required,  when  the  qualifying  <  ircumstan- 
ces  are  the  direct  mattei  in  issue,  or  the  affirmative  is 
eithei  probable  in  it!  elf,  or  supported  by  a  presump- 
tion, or  peculiar  means  oi  proof  are  in  the  hands  oi  the 
party  a    1  Ming  the  n<  gative.  1 

io)  oil,.  Ev.  145,  .»'!>  ed.  11.  V 

,     (/>)   3  .    A     ,    pi.    5  ;     I  '      '     '  '  ■int.       St...!. 
22  («)   "  Atlun. 

(y)  t8  Edw.  III.  44  B.  pi.  50. 

{r)  1  Vent,  e  A   •  Brand  " 

Max.  "  I  vulc.-uis  <li"  |ibtti 

(<i  21    \  .  .  p.  11,  pei    l  '',,u,• 

(t)  8  Mod.  Bi;  a  Curt.  1  rationemj 


502         PRIMA  AT    RULES     OF    EVIDENCE. 

271.  But  here,  two  things  must  be  particularly  at- 
tended to  :  First,  not  to  confound  negative  averments, 
or  allegations  in  the  negative,  with  traverses  of  affirma- 
tive allegations;  (v)  and  secondly,  to  remember  that 
the  affirmative  and  negative  of  the  issue,  mean  the 
illirmative  and  negative  of  the  issue  in  substance,  and 
not  merely  its  affirmative  and  negative  in  form,  (zv) 
With  respect  to  the  former,  if  a  party  asseits  affirma- 
tively, and  it  thereby  becomes  necessary  to  his  case  to 
prove  that  a  certain  state  of  facts  does  not  exist,  or 
that  a  particular  thing  is  insufficient  for  a  particular 
purpose,  and  such  like  ;  these,  although  they  resemble 
negatives,  are  not  negatives  in  reality — they  are,  in 
truth,  positive  averments,  and  the  party  who  makes 
them  is  bound  to  prove  them.  Thus,  in  an  issue  out 
of  Chancery,  directed  to  inquire  whether  certain  land 
assigned  for  the  payment  of  a  legacy  was  deficient 
in  value,  where  issue  was  joined  upon  the  deficiency, 
the  6nc  party  alleging  that  it  was  deficient,  and  the 
other  that  it  was  not,  it  was  held  by  the  court  (Holt, 
C.  J.,  presiding),  that  though  the  averring  that  it  was 

eo   quia  deponens    super    affirmativa  Pro]).  Concl.  70).    "  Probat  cpii  asserit, 

potest  redd  ere  causam  magis  probabi-  non    qui    negat,   eo    quod    per    rerum 

Itm.  quia   negativa  non   ita  se  offert  nat  u  ram  factum  negant  is  probat  io  nulla 

sci.^ui  -icut  affirmativa  secundum  Pal.  est  ;  si  modo  negatio  facti,  et  negatio 

&c Primd    limita    hoc    esse  simplex   sit,  nullis   ciicumstantiis  loci 

verum  in  negativa  non  coarctata  loco,  aut  temporis  munita:   nam  si  vel  juris 

et    tempore,  quia    ilia   non    cadit  sub  negatjo  fiat,  vel  facti  negatio  qualitati- 

iim  totb  :  ...  si  vero  est  munita  bus  loci  atque  1   mporis  vestita  sit,  ipsi 

loco,  et  tempore  ita  ut  cadat  sub  sen-  neganti   probatio    per    legis   imposita 

sum    testi-,  et    ex    sui   natura*    probari  est;  cum  hujusmodi  inficiatioues  in  se 

possit,  nt  si  te-tis  dicat  il Io  die,  et  loco  involvant     affirmationem     quandain." 

cum     pdex     ille    sententiam     tulisset  Voet.    ad    Pand.   lib.    22,  tit.    3,  11.  10. 

inter  Seium,  et  Mevium,  pecunia,  non  See  also  Vinnius,  Jurisp.  Contract,  lib. 

domo    Mevium    ipulctavit,    il)i    enim  4,    c.    24,    and     Kelemen,    Inst.   Jur. 

interfui  et   uiulciam   domus  irrogatam  Ilungar.  Privat.  Jib.  3,  §  97. 
vidi  :  tunc   par  e^t  virtu-,  testis  depo-  (v)  Berty  v.  Dormer,  12   Mod.  526; 

aenti-  affirmativam,   sicut   negativam,  Harvey  v.  Towers,  15  Jurist,  5^4,  545 

et   non    magis   creditur  nmimantibus,  per  Alder-on,  B. 
qcam    negantibus,   &c."  (Mascard.  de  (w)  See  infra,  §  272. 


BURDEN    OF    PROOF.  503 

deficient,  is  such  an  affirmative  as  implies  a  negative, 
yet  it  is  such  an  affirmative  as  turns  the  proof  on 
those  that  plead  it ;  if  he  had  joined  the  issue  that 
the  land  was  not  of  value,  and  the  other  had  averred 
that  it  was,  the  proof  then  had  lain  on  the  other  side. 
(x)  So,  in  an  action  of  covenant  against  a  lessee, 
where  the  breach  is,  in  the  language  of  the  covenant, 
that  the  defendant  did  not  leave  the  premises  in  re- 
pair at  the  end  of  the  term,  the  proof  of  the  breach 
lies  on  the  plaintiff,  (y) 

272.  Again,  as  already  mentioned,  the  incumbency 
of  proof  is  determined  by  the  affirmative  in  sub- 
stance, not  the  affirmative  in  form.  I  "  Ouis  sit 
affirmans,  vel  negans  non  tarn  ex  verbomm  iigura, 
quam  eorum  scntentia  reique  natura  colligitur."  (a) 
"Si  issint  soit  come  vous  dits,  uncore  nostre  affirma- 
tive comprend  en  luy  meme  u  negative:  car,  &c. ; 
ssint  affirmativa  praesupponit  negativam.  Et  en 
moults  eases  2  affirmatives,  ou  un  comprend  un  nega- 
tive, fer  bon  issue  : "  per  Rolf,  arguendo,  I  I.  X  II.  VI. 
\l2  B.  "Affirmativum  negativum  implicat."  (/')  The 
following  cases  will  illustrate  this:  In  Amos  v. 
Hughes,  (c)  which  was  an  action  of  assumpsit  on  a 
contracl  to  emboss  calico  in  a  workmanlike  manner; 
the  breach  was,  thai  the  defendant  did  not  emboss  the 
calico  in  a  workmanlike  manner,  but,  on  the  contrary, 
embos  1  d  it  in  a  bad  and  unworkmanlike  mannei  ;  to 
which  the  defendant   pleaded  that  he  did  embo  s  the 

1,  12  m«  ;     1    i,rr 

(  )•)  Ph.  8  Am.  Ev   S28  ;  H  B, 

Tow  t.  544.  5^ 

B.  1  ;  II.  L      ftind   lib   ia,  ill  ;  Id. 

'•72. 

i!  I  '  ■  ■ 

464;  Ridg«  i     bank,  2   M01 

R.  217;   Smith   v.  D  C  &  1  .  M 

307     Sowaicl  . ■    I 


504        PRLUARY    RULES     OF    EVIDENCE. 

calico  in  a  workmanlike  manner  ;  on  which  issue  was 
joined ;  Alderson,  B.,  said  that  questions  of  that  kind 
were  not  to  be  decided  by  simply  ascertaining  on 
which  side  the  affirmative  in  point  of  form  lay  ;  that 
supposing-  no  evidence  was  given  on  either  side,  the 
defendant  would  be  entitled  to  the  verdict,  for  it  was 
not  to  be  assumed  that  the  work  was  badly  executed  ; 
and  consequently  that  the  onus  probandi  lay  on  the 
plaintiff.  In  Seward  v.  Leggatt,  (d)  which  was  an 
action  of  covenant  on  a  demise,  whereby  the  defendant 
covenanted  to  repair  a  messuage,  &c.,  and  to  paint  the 
outside  wood-work  once  in  every  three  years,  and  the 
inside  wood-work  within  the  last  six  years  of  the  ter- 
mination of  the  lease  ;  the  plaintiff  alleged  as  breaches, 
that  the  defendant  did  not  repair  the  messuage,  &c., 
and  did  not  paint  the  outside  wood-work  once  in  every 
three  years,  and  did  not  paint  the  inside  wood-work 
within  the  last  six  years  of  the  term,  but,  on  the  con- 
trary thereof,  &c.,  and  the  defendant  pleaded  that  he 
did,  from  time  to  time,  at  his  own  proper  costs,  &c, 
well  and  sufficiently  repair  the  messuage,  &c. ;  and 
that  he  did  paint  the  outside  wood-work  once  in  every 
three  years  during  the  term  (specifying  the  times) , 
and  the  whole  of  the  inside  parts  that  were  usually 
painted,  within  the  last  six  years  of  the  termination  ol 
the  term,  to  wit,  &c,  nor  were  the  same  ruinous,  pros 
trate,  &c.,  and  in  a  bad  state  of  order  and  condition 
for  want  of  needful  and  necessary  reparations,  &c 
nor  were  the  same  at  the  end  of  the  term  left  by  the 
defendant  so  ruinous,  prostrate,  &c. ;  concluding  to  the 
country.  On  these  plead  ngs  each  party  claimed  the 
right  to  begin, — contending  that  the  burden  of  proof 
lay  on  him  ;  and  Lord  Abinger,  C.  B.,  said,  "  Looking 
at  these  things  according  to  common  sense,  we  should 

(J)  7  c.  &  P.  O13. 


BURDEN    OF    PROOF.  jog 

consider  what  is  the  substantive  fact  to  be  made  out, 
and  on  whom  it  lies  to  make  it  out.  It  is  not  so 
much  the  form  of  the  issue  which  ought  to  be  con- 
sidered, as  the  substance  and  effect  of  it.  In  many 
cases  a  party,  by  a  little  difference  in  the  drawing  of 
his  pleadings,  might  make  it  either  affirmative  or  ne 
ative,  as  he  pleased.  I  shall  endeavor,  by  my  own 
view,  to  arrive  at  the  substance  of  the  issue.''  And  he 
held  that  the  plaintiff  had  the  right  to  begir .,  as  the 
burden  of  proof  lay  en  him. 

273.  2.  The  burden  of  proof  is  shifted  by  those 
presumptions  of  law  which  are  rebuttable  :  by  pie- 
sumptions  of  fact  of  the  stronger  kind;  and  by  every 
species  of  evidence  strong  enough  to  establish  a  prima 
facie  case  against  a  party.  When  a  presumption  is  in 
favor  of  the  party  who  asserts  the  negative,  it  only 
affords  an  additional  reason  for  easting  the  burden  <>! 
proof  on  his  adv<  rsary  ;  it  is  when  a  presumption  is 
in  favor  of  the  party  who  asserts  the  affirmative  that 
its  effect  becomes  visible,  as  the  opposite  side  is  then 
bound  to  pmvc  his  negative.  The  subject  of  pre- 
sumptions in  general  will  be  treated  in  the  second 
part  of  the  present  book.  (  e) 

274.  3.  There  is  a  third  circumstance  which  may 
all,.!   the    burden  of  proof,  namely,  the  capacity  oi 
panic    to  give  evidence.    "The  law,"  says  one  of  oui 
old  books,  (  /  )  "  will  not  force  a  man  to  show  a  thing 
which    by    intendment    of    law   lies   not    within    hi 
knowledge."    "  Lea  neminem    cogil  ostendere   quod 
m  cire   pra   umitur."  I  From  the  very  nature  ol 
the  que  tion  in  dispute,  all  01  nearly  ill  the  eviden 
that  could   be  addui  1  d   1  ting  it,  mu  I  be  in  the 

{c)   Infra,  pt.   2.  th.  2.  I  I  I      »'>7 

(/)  Plowd.  ,  ■■  ad.  id.  Plowd.      til   i 

54-5,  123.  12S,  129;  Finch,  Law,  (g 


506        PRIMARY    RULES     OF    EVIDENCE. 

possession  of,  or  be  easily  attainable  by,  one  of  the 
contending  parlies,  who  accordingly  could  at  once 
put  an  end  to  litigation  by  producing  that  evidence; 
while  the  requiring  his  adversary  to  establish  his 
case,  because  the  affirmative  lay  on  him,  or  because 
!•]<  re  was  a  presumption  of  law  against  him,  would,  if 
n  .1  amounting  to  injustice,  at  least  be  productive  of 
expense  and  delay.  In  order  to  prevent  this,  it  has 
been  established  as  a  general  rule  of  evidence,  that 
the  burden  of  proof  lies  on  the  person  who  wishes 
to  support  his  case  by  a  particular  fact  which  lies 
more  peculiarly  within  his  own  knowledge,  or  of 
which  he  is  supposed  to  be  cognizant.  (Ji)  Thus 
where,  in  an  action  by  the  assignees  of  a  bankrupt 
fur  a  debt  due  to  the  bankrupt's  estate,  the  defendant 
offered  to  set  off  some  cash  notes  issued  by  the  bank- 
rupt, payable  to  bearer,  and  bearing  date  before  his 
bankruptcy,  it  was  held  that  the  defendant  was  bound 
to  show  that  they  came  into  his  hands  before  the 
bankruptcy.  (z) 

275.  4.  This  rule  is  of  very  general  application  : 
it  holds  good  whether  the  proof  of  the  issue  involves 
the  proof  of  an  affirmative  or  of  a  negative,  and  has 
even  been  allowed  to  prevail  against  presumptions  of 
law.  But  the  authorities  are  by  no  means  agreed  as 
to  the  extent  to  which  it  ought  to  be  carried.  In  R. 
v.  Turner,  ( j )  Bayley,  J.,  says,  "  I  have  always  under- 
stood it  to  be  a  general  rule,  that  if  a  negative  aver- 
ment be  made  by  one  party,  which  is  peculiarly  with- 
in the  knowledge  of  the  other,  the  party  within  whose 
knowledge  it  lies,  and  who  asserts  the  affirmative,  is 

(h)   I'h.  &  Am.  Ev.  829;  R.  v.  Bur-  rine   Insurance  Company  v.  Kearney, 

dctt,  4  B.  &  A.  95,  140,  per  Ilolroyd,  16  Q.  B.  925. 

I.;  Dickson  v.  Evans,  6  T.  R.  57,  60,  (z)  Dickson     v.     Evans,    6    T.     R. 

per   A^hhur.^t,   J.  ;  Calder   v.  Ruther-  57. 

ford,  3  B.  &  B.  302  ;   Sunderland  Ma-  (/)  5   Mau.  &  S.  206,  21 1. 


BURDEN    OF    PROOF.  507 

to  prove  it,  and  not  he  who  avers  the  negative."  But 
in  Elkin  v.  Janson,  (/-)  Alderson,  B.,  un  this  dictum 
being  quoted,  said,  "I  doubt,  as  a  general  rule. 
whether  those  expressions  are  not  too  strong.  They 
are  right  as  to  the  weight  of  the  evidence,  but  there 
should  be  some  evidence  to  start  it,  in  order  to  cast 
the  onus  on  the  other  side."  And  in  R.  v.  Burdett, 
(/)  Hclroyd,  J.,  states  in  the  most  explicit  terms  that 
the  rule  in  question  "  is  not  allowed  to  supply  the 
want  of  necessary  proof,  whether  direct  or  presump- 
tive, against  a  defendant,  of  the  crime  with  which  he 
is  charged  ;  but  when  such  proof  has  been  given,  it  is 
a  rule  to  be  applied  in  considering  the  weight  of  the 
evidence  against  him,  whether  direct  or  presumptive, 
.   len  it  is  unopposed,  unrebutted,  or  not   weakened, 

contrary  evidence  which  it  would  be  in  the  de- 
fendant's power  to  produce,  if  the  fact  directly  or  pre- 
sumptively proved  were  not  true." 

276.  If  this  be  the  true  principle,  as  it  probably 
is,  there  are  some  cases  in  the  books  which  seem  to 
go  much  beyond  it.  At  the  head  of  these  stand 
variou  •  decisions  on  the  game  laws,  <  m  )  and  especially 
R.  .  Turner,  (11) — which  was  a  conviction  by  two 
justices  under  the  stat.  5  Ann.  e.  i.|,  sect  2,  (  I 
against  a  carrier,  for  having  game  in  his  possession; 
— and  where  the  Couii  "i  (  fueen's  I'm  nch  held  it  suf- 
6cient,  if  1  he  qualifications  in  the  '  22  \  I 
25,  sect  3,  were  negatived  in  the  information  and  ad- 

(/•■i  13  M.  iV  W.  f>=5,  I  .in   -i  1 1  v  pri 

\    <,-.  1  . 
(in)  t 

in  l:.  -     I  urner,  ■ 
5  Mau.  ■ 

by  the 
1    ■  2  Will.  4,  c.  32 :   by  t!>>_-  .n  • 

tion  of  which,  hi  !,a" 

aii'i  enai  ted  thai 


503        PRIMARY    RULES    OF    EVIDENCE. 

judication,  although  they  were  not  negatived  by  the 
evidence.  This  decision  was  based  altogether  on  the 
rule  under  consideration,  and  on  the  argument  ab  in- 
convenicnti,  that  the  defendant  must  know  the  nature 
of  his  qualification  if  he  had  one  :  whereas  the  prose- 
cutor would  be  obliged,  if  the  burden  of  proof  were 
cast  upon  him,  to  negative  ten  or  twelve  different 
heads  of  qualification  enumerated  in  the  statute ; 
which  the  court  pronounced  to  be  next  to  impossible. 
So,  in  The  Apothecaries  Co.  v.  Bcntley,  (/) — which 
was  an  action  for  a  penalty  under  the  55  Geo.  3,  c.  94, 
for  practicing  as  an  apothecary,  without  having  ob- 
tained the  certificate  required  by  that  act, — it  was 
held,  that  the  onus  probandi,  that  the  defendant  had 
obtained  his  certificate,  lay  upon  him.  But  the  prin- 
ciple of  these  decisions  is  not  of  universal  application. 
And,  accordingly,  in  the  case  of  Doe  d.  Bridger  v. 
Whitehead,  (/) — which  was  an  ejectment  by  a  land- 
lord against  a  tenant,  on  an  alleged  forfeiture  by 
breach  of  a  covenant  in  his  lease,  to  insure  against  fire 
in  some  office  in  or  near  London,  and  in  which  it  was 
contended  that  it  lay  on  the  defendant  to  show  that 
he  had  insured,  that  being  a  fact  within  his  peculiar 
knowledge ;  and  the  argument  ab  inconvenienti  was 
strongly  urged,  viz.,  that  the  plaintiff  could  not  bring 
persons  from  every  insurance  office  in  or  near  London, 
to  show  that  no  such  insurance  had  been  effected  by 
the  defendant  ;  and  R.  v.  Turner,  The  Apothecaries 
Co.  v.  Bcntley,  and  some  other  cases  of  that  class,  were 
cited  : — Lord  Denman,  C.  J.,  in  delivering  judgment, 
said,  (r)  "  I  do  not  dispute  the  cases  on  the  game  laws 
which  have  been  cited  ;  hut  there  the  defendant  is,  in 
the  first  instance,  shown  to  have  done  an   act  which 

(/)  Ry.  &  Mood.  159.  (r)  8  A.  &  E.  575. 

iS)  8  A.&E.  571. 


BURDEN    OF    PROOF.  509 

was  unlawful  unless  he  was  qualified  ;  and  then  the 
proof  of  qualification  is  thrown  upon  the  defendant. 
Here  the  plaintiff  relies  on  something  done  or  per- 
mitted by  the  lessee,  and  takes  upon  himself  the  bur- 
den of  proving  that  fact.  The  proof  may  be  difficult 
where  the  matter  is  peculiarly  within  the  defendant's 
knowledge  ;  but  that  does  not  vary  the  rule  of  law." 
And  in  the  same  case,  Littledale,  J.,  said  :  (s)  "  in  the 
cases  cited  as  to  game,  the  defendant  had  to  bring 
himself  within  the  protection  of  the  statutes  ;  "  "  a  like 
observation  applies  to  The  Apothecaries  Co.  v.  Bent- 
ley.  But  here,  where  a  landlord  brings  an  action  to 
defeat  the  estate  granted  to  the  lessee,  the  onus  of 
proof  ought  to  lie  on  the  plaintiff."  And  this  ruling 
has  been  upheld  by  subsequent  cases.  (/) 

277.  It  remains  to  add,  that  the  difficulties  attend- 
ing the  application  of  this  principle  to  criminal 
charges,  have  been  felt  in  America  as  well  as  here,  as 
appears  from  the  following  passage  in  Grccnl.  Kvid. 
vol.  3,  §  24,  note  (2),  2d  ed.  : 

"The   question   as    to   the   burden    of   proving  the 

negative  averment  of  disqualification  in  the  defendant, 
arising  from  his  want  of  license  to  do  the  act  com- 
plained of,  was  fully  considered  in  the  ( Jommonwealth 
v.  Thurlow,  2\  rick.  37.},  which  wasan  indictment  for 
selling  spirituous  liquors  without  licen  The  Chiel 
Justice,  Shaw,  delivered  the  judgment  ol  the  court 
upon  this  point  in  the  following  term 

•• «  Xhe  la  I  ption  nec<  ssarj  i"  be  i  om  Idered  is 

that  the  court  ruled  that  the  | i  utoi  need  no 

evidence,  in  support  of  the  negativ<  avermenl  thatthe 
defendant  v  as  not  duly  licensed  ;  thereb)  throwing  on 

(x)  id.  57^..  "••' "'    '■'■   Wart,   9  Inn  t,   N.  S.  288; 

(O  Sec   Toleman   v.   Portbuiy  (in      Pric*  v  W  -i  H.  *  N.  51a. 

Cam.  Scac.),L,  Rep     Q  B  if    Wedg- 


510        PRIMARY    RULES    OF    EVIDENCE. 

him  the  burden  of  proving  that  he  was  licensed,  if  he 
intends  to  rely  on  that  fact  by  way  of  defense.  The 
court  ent(  rtained  no  doubt  that  it  is  necessary  to  aver 
in  the  indictment,  as  a  substantive  part  of  the  charge, 
that  the  defendant,  at  the  time  of  selling,  was  not  duly 
licensed.  How  far,  and  whether  under  various  circum- 
stances, it  is  necessary  to  prove  such  negative  aver- 
ment, is  a  question  of  great  difficulty,  upon  which 
there  are  conflicting  authorities.  Cases  may  be  sug- 
gested, of  great  difficulty,  on  cither  side  of  the  general 
question.  Suppose,  under  the  English  game  laws,  an 
unqualified  person  prosecuted  for  shooting  game  with- 
out the  license  of  the  lord  of  the  manor,  and  after  the 
alleged  offense  and  before  the  trial,  the  lord  dies,  and 
no  proof  of  license,  which  may  have  been  by  parol,  can 
be  given  ?  Shall  he  be  convicted  for  want  of  such 
affirmative  proof,  or  shall  the  prosecution  fail  foi 
want  of  proof  to  negative  it  ?  Again,  suppose 
under  the  law  of  this  Commonwealth,  it  were 
made  penal  for  any  person  to  sell  goods  as  a  hawker 
and  pedlar,  without  a  license  from  the  selectmen  ol 
some  town  in  the  Commonwealth.  Suppose  one- 
prosecuted  for  the  penalty,  and  the  indictment,  as  here, 
contains  the  negative  averment,  that  he  was  not  duly 
licensed.  To  support  this  negative  averment,  the  se- 
lectmen of  more  than  three  hundred  towns  must 
be  called.  It  may  be  said,  that  the  difficulty  of  ob- 
taining proof  is  not  to  supersede  the  necessity  of  it, 
and  enable  a  party  having  the  burden  to  succeed  with- 
out proof.  This  is  true  ;  but  when  the  proceeding  is 
upon  statute,  an  extreme  difficulty  of  obtaining  proof 
on  one  side,  amounting  nearly  to  impracticability,  and 
great  facility  of  furnishing  it  on  the  other,  if  it  exists, 
leads  to  a  strong  inference,  that  such  course  was  not 
intended  by  the   legislature  to  be  required.     It  would 


BURDEN    OF    PROOF.  511 

no  doubt  be  competent  for  the  legislature  so  to  frame 
a  statute  provision,  as  to  hold  a  party  liable  to  the 
penalty,  who  should  not  produce  a  license.  Besides 
the  common-law  rules  of  evidence  arc  founded  upon 
good  sense  and  experience,  and  adapted  to  practical  use, 
and  ought  to  be  so  applied  as  to  accomplish  the  pur- 
poses for  which  they  were  framed.  But  the  court 
have  not  thought  it  necessary  to  decide  the  general 
question  ;  cases  may  be  affected  by  special  circum- 
stances, giving  rise  to  distinctions  applicable  to  them 
to  be  considered  as  they  arise.  In  the  present  ca 
the  court  are  of  opinion  that  the  prosecutor  was 
bound  to  produce  prima  facie  evidence  that  the  de- 
fendant was  not  licensed,  and  that,  no  evidence  of  that 
averment  having  been  given,  the  verdict  ought  to  be 
set  aside.  The  general  rule  is,  that  all  the  averments 
necessary  to  constitute  the  substantive  offense,  must 
be  proved.  If  there  is  any  exception,  it  is  from 
necessity,  or  that  great  difficulty,  ami  >unting  pracl  icall) 
to  such  necessity;  or,  in  other  winds,  where  one  part) 
could  not  show  the  negative,  and  when-  the  other 
could  with  perfeel  ease  how  the  affirmative.  Bui  ifa 
party  is  lic<  n  ed  as  a  retailer  under  the  statufr  "I  the 
Commonwealth,  it  must  have  been  done  l>\  the  county 
commissioners  for  the  county  where  the  1  au  is  tried, 
and  within  one  pear  next  previous  i<>  the  alleged 
offeni  The  county  commissioner!  h  ive  .i  clerk,  and 
are  required  l>v  law  to  keep  a  ri  1  ord,  01  memorandum 
in  writing,  of  their  aeis,  including  the  grantin 
licensi        This    proof   is    equally    a<  ble    to    both 

panic      thi    negativ<    averment   can  !><•   proved  with 
great  l":    ility,  and  therefore,  in  conformity  to  th  ral 

rule,  the  prosecutoi   ought   to  produce  it   before  h<   is 
entitled  1        k  a  jury  to  convict   the  part)  accused." 
I    immonwealth  v.  Thurlow,  24  Pick.  3; 


5i2        PRIMARY    RULES     OF    EVIDENCE 

This  point  has  since  been  settled  otherwise,  in  Massa- 
chusetts, by  stat.  1844,  cn-  J°2»  which  devolves  on  the 
defendant  the  burden  of  proving  the  license.1 

1  So  it  is  held  at  common  law,  in  North  Carolina  :  The 
State  v.  Morrison,  3  Dev.  299.  And  in  Kentucky:  Haskill  v.' 
Commonwealth,  3  B.  Monr.  342.  And  in  Maine:  State  v. 
Crowd],  12  Shepl.  171.  And  in  Indiana:  Shearer  v.  The  State, 
7  Blackf.  99.  See  also,  on  this  subject,  Commonwealth  v.  Kim- 
ball, 24  Pick.  366. 


HOW    MUCH    MUST    BE    PROVED.        513 


CHAPTER  III. 


HOW     MUCH    MUST    BE    PROVED. 

PARAC«AHt 

Rule — Sufficient  if  the  issues,  &c.  raised  are  proved  in  substance      .         .  278 

Averments  and  statements  wholly  immaterial  may  be  disregarded  279 

But  not  when  they  affect  what  is  material         ....  2S0 

The  tribunal  should  ascertain  the  real  question  between  the  parties  .  281 

Illustrations  from  old  authorities 281 

Other  instances     . 2S3 

Application  of  the  rule  in  criminal  cases 2W.< 

At  common  law 284 

By  statute 

24  &  25  Vict.  c.  100,  sect.  60 j    , 

14  &  15  Vict.  c.  100,  and  24  &  25  Vict.  cc.  95,  96      .         .  284 

Variance     ......                  ■  '5 

Amendment  of  variances "'S 

9  Geo.  4,  c.  15 

In  civil  cases 386 

3  &  4  Will.  4,  c.  42,  sects.  23  &  24 286 

The  Common  Law  Procedure  Acts, — 15  &  10  Vict.  c.  76,  sects. 
35,  87,  222  ;   17  &  18  Vict.  c.  125,  sect.  96;  23  &  24  Vict. 

c.  121                i6 286 

Other  statutes 2S7 

Supreme  Court  of  Judicature  Act,  1873 

itatatea 1    > 

In  criminal  cases 2</0 

1 1  8  12  Vii  t.  c,  46,  sect  4 

14  iV  r  5  Vict.  c.  IOO,  sect.  1 3<;I 

278.  The  just  and  reasonable  principle,  thai  tri- 
bunals should  look  to  the  meaning  rathi  i  than  to  the 
langua  i  of  1  he  pleadii  u  <  >1  h<  i  statemi  nl  ol  lil  i- 
gant  parties,  is  not  confined  to  the  burden  ol  proof, 
but  extends  to  the  prool  il  elf  The  rule  ol  lawfrom 
♦.lie  earliest  times  has  been,  thai  ii  is  sufficient  il  the 
issues  raised  are  proved   in  subsl This  is  in 

(a)   Lilt.  us.  483,  4S4.  4S5  ;  Co.  I.itt.      2z;  11  ib.    73.   81  .   J 

3.1 


514        PRIMARY    RULES    OF    EVIDENCE. 

truth  only  a  branch  of  a  still  more  general  principle, 
which  runs  through  every  rational  system  of  jurispru- 
dence. "Lex  rejicit  supcrflua,"  (6)  "  Superflua  non 
noccnt, "  (V)  "  Utile  per  inutile  non  vitiatur."  (V) 

279.  The  most  obvious  application  of  this  rule  is, 
in  the  case  of  averments  and  statements,  wholly  im- 
material. All  averments  which  might  be  expunged 
from  the  record,  without  affecting  the  validity  of  the 
pleading  in  which  they  appear,  may  be  disregarded  at 
the  trial ;  for  such  averments  only  incumber  the  record, 
and  the  proof  of  them  would  be  as  irrelevant  as  them- 
selves, (e)  And  there  can  be  no  doubt  that  the  same 
principle  applies  to  allegations  and  statements  made 
otherwise  than  in  formal  pleadings.  All  this,  however, 
must  be  understood  of  pleadings  which  show  a  good 
ground  of  action  or  defense  in  law  ;  for  it  is  a  rule 
that  a  bad  pleading  must  be  proved  in  omnibus,  to 
entitle  the  party  pleading  it  to  a  verdict.  (/") 

280.  But  matter  which  need  not  have  been  stated 
may  be  injurious,  or  even  fatal,  when  it  affects  that 
which  is  material.  A  party  may  allege  or  prove  things 
which  he  was  not  bound  to  allege  or  prove,  but  which, 
when  alleged  or  proved,  put  his  case  out  of  court,  (g-) 
Thus  where,  before  the  15  &  16  Vict.  c.  76,  s.  64.  a 
party,  in  giving  express  color,  stated  a  true  title  in  his 

Rol.  41-2;  Tryals   per   Pais,  £40,  cd.  debet  per  inutile  vitiari :"     Sext.  De- 

1665;    1    Phill.   Ev.   558,  10th  ed. ;  1  cretal.   lib.   5,   tit.   12.   De    Reg.  Jur. 

Stark.   Ev.  431,  3rd  ed.  ;  Id.  625,4th  Reg.  37. 

ed.     For  earlier  authorities,  see  bk.  1,  (e)  1  Phil.   Ev.    55S,  567,   568,  roth 

p.  2,  §  III,  note  (g).  ed. ;  1   Stark.   Ev.   432,  3rd  ed. ;  Id. 

(6)  Jenk.  Cent.  3,  cas.  72.  626,  4th  ed. 

(<r)  Jcnk.  Cent.  4,  cas.  74;   Cent.  8,  (/)  Walker  v.  Goe,  3  H.  &  N.405, 

cas.  41.  Mardall  v.  Thelluson,  6  E.  &  B.  980, 

(</)  Co.    Litt.    3  a,  227  a,  379  a;    3  per  Creswell,  J. 

Co.  to  a  ;   10  Co.  no  a;   Hob.  171;  2  (g)  I    Edw.  V.,   3,    pi.    5;    Keilw. 

Saund.  369  ;  1  Stark.  Ev.  432,  3rd  ed   ;  165b.pl.   2;    Plowd.   32,84;   Finch, 

Id.   625,  4th  ed.     "  Non   solent,  quae  Law,    65 ;    and    Lush   v.    Russell,    5 

abundant,    vitiare     scripturas "    (Dig.  Exch.  203. 
lib.    50,   tit.    17,   1.   94).     "Utile    non 


HOW    MUCH    MUST    BE    PROVED.        515 

adversary  instead  of  a  defective  one,  the  latter  was  en- 
titled to  judgment  on  the  pleader's  own  showing,  (/i) 
It  is  accordingly  a  rule  that  averments,  though  un- 
necessarily introduced,  cannot  be  rejected  w Inn  they 
operate  by  way  of  description  or  limitation  of  essen- 
tials, (z)  "Let  an  averment  of  this  kind,"  says  an 
eminent  authority  on  evidence,  (/)  "be  ever  so  su- 
perfluous in  its  own  nature,  it  can  never  be  considered 
to  be  immaterial  when  it  constitutes  the  identity  of 
that  which  is  material." 

281.  This  rule  does  not  merely  absolve  from  proof 
of  irrelevant  matter.  It  has  a  far  more  general  appli- 
cation, and  means  that  the  tribunal  by  which  a  cause 
is  tried  should  examine  the  record  or  allegations  of 
the  contending  parties,  or  of  their  advocates,  is  the 
case  may  be,  with  a  legal  eye,  in  order  to  ascertain  the 
real  question  raised  between  them.  In  illustration  we 
shall  first  cite  some  old  authorities,  both  because  they 
are  very  apposite, and  also  to  show  that  the  rule  under 
consideration  is  not  an  arbitrary  invention  of  modern 
times, — a  light  in  which  it  is  too  common  t"  view  .ill 
the  rules  of  evidence. 

282.  "  If,"  says  I  ,il  1  leton,  (/•)  "  a  man  bring  .1  writ 
of  entry  in  casu  proviso,  of  the  alienation  made  by  the 
tenanl  in  dower  to  his  disinheritance, and  counteth  >f 
the  alienation  made  in  fi  e  ;  and  ili«-  tenanl  saith,  that 
1m-  did  not  alien  in  nianix  .  1  the  demandant  hath  de- 
clared, and  upon  this  they  are  at   issue  ;   and  ii  is  h.ii  1  id 

by  verdict  thai  the  tenanl  aliened  in  tail,  01  foi  term 
of  another  man's  life,  the  'l<  1  nam  l.i  ni  shall  re<  ov<  1  :  jr<  I 
tin-  alienation  was  not    in   mannei  as  the  demandant 


(A)  Steph.  Plead.  245,  5th  ed  ed. ;  Webb  v    Rom,  J 

(1    1  siark.  Ev.  .|.j3,  3rd  cl. ;  Fb.  A      i ."    >-•:.  pel  Martin,  B. 
Am.    Ev.  853;  1  I'll  II.   Kv    567,10th  f)  I  SI  I       443.  3rd  ed. 

■     i-*3- 


516        PRIMARY    ROLES    OF    EVIDENCE. 

hath  declared."  "  Also,  (/)  if  there  be  lord  and  tenant, 
and  the  tenant  hold  of  the  lord  by  fealty  only, and  the 
lord  distrain  the  tenant  for  rent,  and  the  tenant  bring- 
eth  a  writ  of  trespass  against  his  lord  for  his  cattle  so 
taken,  and  the  lord  plead  that  the  tenant  holds  of  him 
by  fealty  and  certain  rent,  and  for  the  rent  behind  he 
came  to  distrain,  &c.,  and  demand  judgment  of  the  writ 
brought  against  him,  quare  vi  et  armis,  &c.,  and  the 
other  sayeth  that  he  doth  not  hold  of  him  in  the  man- 
ner as  he  suppose,  and  upon  this  they  are  at  issue,  and 
it  is  found  by  verdict  that  he  holdeth  of  him  by  fealty 
only ;  in  this  case  the  writ  shall  abate,  and  yet  he  doth 
not  hold  of  him  in  the  manner  as  the  lord  hath  said. 
For  the  matter  of  the  issue  is,  whether  the  tenant 
holdeth  of  him  or  no;  for  if  he  holdeth  of  him, 
although  that  the  lord  distrain  the  tenant  for  other  ser- 
vices  which  he  ought  not  to  have,  yet  such  a  writ  of 
trespass  quare  vi  et  armis,  &c,  doth  not  lie  against  the 
lord,  but  shall  abate."  "  Here  it  appcareth,"  says  Lord 
Coke,  (111)  "  that  if  the  matter  of  the  issue  be  found,  it 
is  sufficient;"  and,  as  illustrations  of  this  he  gives, 
amongst  others,  the  two  following  cases,  supported  by 
the  authority  of  an  early  Year  Book.  "In  assise  of 
darreine  presentment,  if  the  plaintiff  allege  the  avoyd- 
ance  of  the  church  by  privation,  and  the  jury  find 
the  voydance  by  death,  the  plaintiff  shall  have  judg- 
ment :  for  the  manner  of  voydance  is  not  the  title  of 
the  plaintiff,  but  the  voydance  is  the  matter,  (n)  If  a 
guardian  of  an  hospital  bring  an  assise  against  the 
ordinary,  he  pleadeth  that  in  his  visitation  he  deprived 
him  as  ordinary  ;  whereupon  issue  is  taken,  and  it  is 
found  that  he  deprived  him  as  patron  ;  the  ordinary 

(/)  Liu.  sect.  484.  (,i)  Co.    Litt.    282  a ;  6    Edw.   IIL 

(tn,  Co.  Litt.  282  a.  41  b,  pi.  22. 


BURDEN    OF    PROOF.  51; 

shall  have  judgment,  for  the  deprivation  is  the  sub- 
stance of  the  matter."  (0) 

233.  The  books  contain  many  oth  :r  instances  of 
the  effect  of  this  rule.  (/)  Thus,  in  an  action  on  a 
bond,  a  pica  of  solvit  ad  diem  is  supported  by  proof  of 
payment  ante  diem  ;  (j)  for  the  payment,  so  as  to  save 
the  penalty,  is  the  matter  in  issue.  I  n  an  action  against 
a  tenant  for  waste  in  cutting  down  a  certain  number  of 
trees,  proof  that  the  defendant  cut  down  a  less  number 
maintains  the  issue,  (r)  Although  in  actions  on  con- 
tracts the  contract  must  be  correctly  stated,  and  proved 
as  laid  ;  yet  every  day's  practice  shows  that  in  actions 
on  simple  contract,  as  also  inactions  of  tort,  the  plain- 
tiff may  recover  for  a  less  sum  than  that  claimed  in  'lie 
declaration.  And  in  actions  of  tort  it  is  generall)  suf- 
ficient to  prove  a  substantial  portion  of  the  trespasses 
or  grievances  complained  of. 

284.  The  rule  in  question  is  not  confined  to  civil 
cases.    (Y)       It    is    a    principle    running   through   the 
whole  criminal   law,  that   it   is  sufficienl  t<>  prove 
much  of  an  indi<  tmenf  as  charges  the  accused  with  a 
substantive  crime.  </>     And  what  averments  in  an  in- 
dictment are  so  separable  and  divisible  from  the  re  1 
that  want  of  proof  of  those  averments  shall  not  vitiate 
the  whole,  forms  an   important  head  of  practice.     I  "i 
instance  :  on  an  indictment   i<>i  burglaj y  and  st<  alii 
goods  in  the  house,  the  averments  <>f  breaking  and 
1,  aling  are  divisible,  i"  thai   it  1  lie   burglar)  l»-  n 
proved  the  a<  1  u  ed  may  be  convicted  "I  larci  n) 

(0)  Co.  Litt. 28a  a  1      1  dw.  in  ■    ■  •  ..   1  v 

pi.  37,  ;  S  A  -  p' 
(/)  F01 

in  the  old  ' 

1    I  v:     1  •  -  1  .   K 

(,/,    I     .  Am.     EV.    .J" 

Ev.  559,  10th  C.  559- 


$i8        PRIMARY     RULES     OF    EVIDENCE. 

as  he  also  may  on  a  charge  of  robbery,  where  it  ap- 
pears thai,  the  taking  \vas  not  with  violence,  (.r)  And 
on  an  indictment  for  murder,  the  accused  maybe  (and 
often  is)  convicted  of  manslaughter ;  for  the  sub- 
stance of  the  offense  charged  is  the  felonious  slaying, — 
malice  aforethought  being  only  an  aggravation,  (jy) 

By  several  modern  statutes,  also,  a  like  principle  has 
been  extended  to  various  offenses  not  actually  charged 
in  the  indictment.  Thus,  by  the  24 &  25  Vict  c.  100,  s. 
60,  a  person  indicted  for  child  murder,  may,  though 
acquitted  of  the  murder,  be  convicted  of  the  misde- 
meanor of  concealing  the  birth  of  the  child.  So,  by 
the  14  &  15  Vict.  c.  100,  s.  9,  it  is  enacted,  that  "  If  on 
the  trial  of  any  person  charged  with  any  felony  or 
misdemeanor,  it  shall  appear  to  the  jury  upon  the 
evidence,  that  the  defendant  did  not  complete  the 
offense  charged,  but  that  he  was  guilty  only  of  an 
attemj  t  to  commit  the  same,  such  person  shall  not 
by  reason  thereof  be  entitled  to  be  acquitted,  but 
the  j'iry  shall  be  at  liberty  to  return  as  their 
verdict,  that  the  defendant  is  not  guilty  of  the  felony 
or  mi  'demeanor  charged,  but  is  guilty  of  an  attempt 
to  commit  the  same,  and  thereupon  such  person  shall 
be  liable  to  be  punished  in  the  same  manner  as  if  he 
had  been  convicted  upon  an  indictment  for  attempting 
to  commit  the  particular  felony  or  misdemeanor 
charged  in  the  said  indictment ;  and  no  person  so 
tried  as  herein  lastly  mentioned,  shall  be  liable  to  be 
afterwards  prosecuted  for  an  attempt  to  commit  the 
felony  or  misdemeanor  for  which  he  was  so  tried." 

And,  by  sect.  12  of  the  same  statute,  it  is  enacted, 
that  "If  upon  the  trial  of  any  person  for  any  misde- 
meanor it  shall  appear  that  the  facts  given  in  evidence 

(x>  Id.  534,  535,  Harman's  Case.  Litt.    282    a ;    Gilb.    Evid.    269,    4th 

(y)  Bio.  .Ab.    Corone,  pi.  221  ;  Co.      ed. 


HOW    MUCH    MUST    bE    PROVE  519 

amount  in  law  to  a  felony,  such  person  shall  not  by 
reason  thereof  be  entitled  to  be  acquitted  of  such 
misdemeanor ;  and  no  persons  tried  for  such  misde- 
meanor shall  be  liable  to  be  afterwards  prosecuted  for 
felony  on  the  same  facts,  unless  the  court  before  which 
such  trial  may  be  had  shall  think  fit,  in  its  discretion, 
to  discharge  the  jury  from  giving  any  verdict  upon 
such  trial,  and  to  direct  such  person  to  be  indicted  for 
felony,  in  which  case  such  person  maybe  dealt  with  in 
all  respects  as  if  he  had  not  been  put  upon  his  trial  for 
such  misdemeanor." 

Again:  by  the  24  &  25  Vict.  c.  96,  s.  41,  it  is 
enacted,  that  "  If  upon  the  trial  of  any  person  upon 
any  indictment  for  robbery,  it  shall  appear  to  the  jury 
upon  the  evidence  that  the  defendant  did  not  commit 
the  crime  of  robbery,  but  that  he  did  commit  an  assault 
with  intent  to  rob,  the  defendant  shall  net  1>\  reason 
hereof  be  entitled  to  be  acquitted,  but  the  jury  shall 
be  at  liberty  to  return  as  their  verdict,  that  the  defen- 
dant is  guilty  of  an  assault  with  intent  to  rob,  and 
thereupon  such  defendant  shall  he  liable  to  he  pun- 
ished, in  the  same  manner  as  ifhe  had  been  convicted 
upon  an  indictment  for  feloniously  .1  aulting  with  in- 
tent to  rob  ;  and  no  pi  rson  so  tried  as  is  herein  lastly 
mentioned,  hill  be  liable  to  be  afterward  pi..  <  <  uted 
lor  an  assault  with  intent  to  commit  the  robbery  I 

which  he  was  SO  1 1  L(  d." 

So,  by  the  j  1  &  25  Vi<  1.  < .  96,  s,  ;.\  it   is  enacted, 
thai    "  I f  upon    the  trial   of  at  n  indicted  1 

embezzlement,  01  fraudulent  application, 01  di  :      ition, 
..  it    ihall  be  proved  thi  I   h  the  property  in 

question  in  any  such  manner  .is  t<.  amount   in   law  I 
lar  eny,  he    '  ill  n  »1   bv  re  ison  then  of  I"-  entitle      1 
b  ■  acquitted,  hut   the  jury    hall  l><  at  hi"  rtj  to  return 
as  their  verdict  that  such  pei  on  is  noi   guilty  ol  em« 


520        PRIMARY    RULES     OF    EVIDENCE. 

bczzlcmcnt,  or  fraudulent  application,  or  disposition, 
but  is  guilty  of  simple  larceny,  or  of  larceny  as  a  clerk, 
servant,  or  person  employed  for  the  purpose  or  in  the 
'capacity  of  a  clerk  or  servant,  or  as  a  person  employed 
in  the  public  service,  or  in  the  police,  as  the  case  may 
be ;  and  thereupon  such  person  shall  be  liable  to  be 
punished  in  the  same  manner  as  if  he  had  been  con- 
victed upon  an  indictment  for  such  larceny ;  and  if 
upon  the  trial  of  any  person  indicted  for  larceny,  it 
shall  be  proved  that  he  took  the  property  in  question 
in  any  such  manner  as  to  amount  in  law  to  embezzle- 
ment, or  fraudulent  application  or  disposition  as  afore- 
said, he  shall  not  by  reason  thereof  be  entitled  to  be 
acquitted,  but  the  jury  shall  be  at  liberty  to  return  as 
their  verdict  that  such  person  is  not  guilty  of  larceny, 
but  is  guilty  of  embezzlement,  or  fraudulent  applica- 
tion or  disposition,  as  the  case  may  be,  and  thereupon 
such  person  shall  be  liable  to  be  punished  in  the  same 
manner  as  if  he  had  been  convicted  upon  an  indict- 
ment for  such  embezzlement,  fraudulent  application 
or  disposition ;  and  no  person  so  tried  for  embezzle- 
ment, fraudulent  application  or  disposition,  or  larceny 
as  aforesaid,  shall  be  liable  to  be  afterwards  prosecuted 
for  larceny,  fraudulent  application  or  disposition,  or 
embezzlement  upon  the  same  facts." 

And,  lastly,  it  is  enacted  by  the  24  &  25  Vict.  c. 
96,  s.  94,  that  "  If  upon  the  trial  of  any  two  or  more 
persons  indicted  for  jointly  receiving  any  property,  it 
shall  be  proved  that  one  or  more  of  such  persons 
separately  received  any  part  or  parts  of  such  property, 
it  shall  be  lawful  for  the  jury  to  convict,  upon 
such  indictment,  such  of  the  said  persons  as  shall 
»e  proved  to  have  received  any  part  or  parts  of  such 
property." 

285.   But  although  the  law  is  thus  liberal  in  look- 


HOW    MUCH    MUST    BE    PROVED.        521 

ing  through  mere  form,  in  order  to  sec  the  real  sub- 
stance of  the  questions  raised,  a  positive  variance  oi 
discrepancy  between  a  pleading  and  the  proof  ad- 
duced in  support  of  it  was  always  fatal — a  rule  abso- 
lutely necessary  to  prevent  the  opposite  party  from 
being  unfairly  taken  by  surprise,  and  the  whole  system 
of  pleading  converted  into  a  snare.  Still  this  prin- 
ciple, however  salutary  in  itself,  was  certainly  carried 
too  far;  and  indeed  it  would  be  strange,  if  the  super- 
subtile  spirit  which  in  the  fourteenth  and  fifteenth 
centuries  took  possession  of  our  pleadings,  had  not 
extended  its  influence  to  their  proof,  (p)  The  conse- 
quence was,  that  the  best  causes  were  continually  lo  I 
through  variances  of  the  most  unimportant  kind  ;  in 
order  to  obviate  the  danger  of  which,  practitioners 
resorted  to  the  plan  of  stating  the  same  cause  of  com- 
plaint in  different  counts;  and,  whenever  they  could 
obtain  leave  of  the  court  under  the-  statute  .|  Ann.  1 
16,  stating  the  same  subject-matter  of  defense  in  dif- 
ferent pleas,  varied  only  in  circumstances.  Bui  this 
statute  did  not  apply  to  replications  and  subsequent 
pleadings;  (a)  and  the  devices  just  mentioned  while 
they  added  very  considerably  to  the  intrica<  j  ol  plead- 
ings and  expense  of  suits,  had  not  always  the  desire  I 

Clin  t. 

The  attention   of  the   legislature   was   at    length 
turned  to  this   subject;  and    by  the  ■)  Geo.  4,  c.  15, 
power  was  given  to   every   court    of  record   holdii 
plea  in  civil  actions,  to  any  judge  \  itting  at  nisi  pri 
and  10  any  court   ot  oyer  and  terminei  and  g<  n< 
j;,il  delivery,  if  su<  h  1  -mi  01  judgeshould    <  1   in  so  to 
do,  to  cau      tin-  !•  cord  on  whi<  h  an)  tii-"l  mi  lit  be 

(x)  See  Co.  Litt.  303  a,  304 
*      (a)  By    1  ■.   <•.  7'..  s.  Si. 

several  11...  •  FlldlcfttUfl  •   ,8 

court  or  a  j  «    pleaded    at    any      and  17 


522        rRIMARY    RULES     OF    EVIDENCE. 

pending  before  any  such  judge  or  court  in  any  civil  ac- 
tion, or  in  any  indictment,  or  information  for  any  misde- 
meanor, when  any  variance  appeared  between  any  mat- 
ter in  writing  or  in  print  produced  in  evidence,  and 
the  recital  or  setting  forth  thereof  upon  the  record , 
whereon  the  trial  was  pending,  to  be  forthwith 
amended  in  such  particular  by  some  officer  of  the 
court,  on  payment  of  such  costs  (if  any)  to  the  other 
party  as  such  judge  or  court  should  think  reasonable. 
Whereupon  the  trial  should  proceed  as  if  no  such  var- 
iance had  appeared. 

286.  This  statute,  it  is  obvious,  went  a  very 
short  way  towards  remedying  the  evil.  Tt  was, 
however,  afterwards  met  more  vigorously  in  civil 
cases,  by  the  Pleading  Rules  of  H.  T.  4  Will. 
4, — to  which  was  given  the  force  of  an  act  of 
parliament, — and  by  the  statute  3  &  3  Will.  4,  c. 
42,  s.  23. 

The  power  of  amendment  was  again  much  in- 
creased, by  the  Common  Law  Procedure  Acts,  1 5  cSl 
16  Vict.  c.  76,  ss.  35,  37,  and  222  ;  17  &  18  Vict.  c.  125, 
s.  96  ;  and  23  &  24  Vict.  c.  126,  s.  36, — a  general  power 
of  amendment  having  been  conferred  by  sect.  222  of 
the  first  of  these  acts,  in  the  following  terms  :  viz., 
that  "It  shall  be  lawful  for  the  Superior  Courts  of 
Common  Law,  and  every  judge  -thereof,  and  any 
judge  sitting  at  nisi  prius,  at  all  times  to  amend  all 
defects  and  errors  in  any  proceeding  in  civil  causes 
whether  there  is  anything  in  writing  to  amend  by  or 
not,  and  whether  the  defect  or  error  be  that  of  the 
party  applying  to  amend,  or  not ;  and  all  such  amend- 
ments may  be  made  with  or  without  costs,  and  upon 
such  terms  as  to  the  court  or  judge  may  seem  fit ;  and 
all  such  amendments,  as  may  be  necessary  for  the  pur- 
pose of  determining  in  the  existing  suit  the  real  ques- 


HOW    MUCH    MUST    BE    PROVED.         523 

tion  in  controversy  between  the  parties,  shall    he  so 
made." 

287.  The  power  of  amendment  was  also  extended 
by  other  statutes  to  other  kinds  of  proceedings.  E.  g, 
by  the  16  &  1  7  Vict.  c.  107,  s.  263,  it  was  extended  to 
"all  suits  or  proceedings  at  the  suit  of  the  Crown  for 
the  recovery  of  any  duty  or  penalty,  or  the  enforce- 
ment of  any  forfeiture  under  any  act  relating  to  the 
customs."  By  20  &  21  Vict.  c.  yy,  s.  $7>  lt 
was  extended  to  the  trial  of  questions  by  a  jury 
under  the  order  of  the  Court  of  Probate.  By  the 
20  &  21  Vict.  c.  85,  s.  38,  it  was  extended  to 
trials  by  jury  under  the  order  of  the  Court  for 
Divorce  and  Matrimonial  Causes.  And  by  the  22 
&  23  Vict.  c.  21,  s.  9,  it  was  extended  to  all  suits 
and  proceedings  on  the  revenue  side  of  the  Court 
of  Exchequer. 

288.  And  now,  by  the  Supreme  Court  of  Judica 
turc  Act,  1873,  (£)  the  court  or  a  judge  may,  at  any 
stage  of  the  proceedings,  allow  either  party  to  alter  his 
statement  of  claim,  or  defense,  or  reply,  oi  may  ordei 
to  be  struck  out  or  amended,  any  mattei  in  such  state- 
ments respectively  which  may  b<  mdalous,  or  which 
may  tend  to  prejudice,  embarrass,or  delay  the  fair  trial 
of  the  action:  \\n^\  all  such  amendments  shall  bemade 
as  may  be  m  o  ary  for  the  purposi  of  determining  the 
real  questions  or  question  in  controvei      between  the 

parti*   . 

289.  tn  exercising  the  discretion  vested  in  them 
by  these  statutes,  court  -  and  i  I  ol  1  oui      be 
much  guided  by  the  de<  i  ion    whi<  h  have  taken  pi  1 
on  the  subject ;  although  the  e,  il   mu  1   I  nowl- 
edged,  are  by  no  me  in  i  in  conformity  with  eai  h  oth 

(6)  36   &    37   Vict.   1  '8. 


514        PRIMARY    RULES    OF    EVIDENCE. 

(c)  But  this  much  may  be  stated,  viz.,  that,  in  the  first 
place,  it  seems  that  no  judge  ought  to  make  an  amend- 
ment, the  effect  of  which  would  be  to  deprive  him  of 
jurisdiction  over  the  cause,  (d)  Again,  as  the  object 
of  these  statutes  was  to  carry  out  the  spirit  of  the  law 
and  not  to  supersede  it,  no  pleading  ought  to  be 
amended  so  as  to  render  it  bad  in  law,  (e)  or  which 
might  tend  to  prejudice,  embarrass,  or  delay  the  fair 
trial  of  the  action.  (_/")  And,  lastly,  it  is  to  be  observed 
generally,  that  the  courts  in  banc  have  been  very 
chary  of  interfering  with  the  discretion  of  judges  at 
nisi  prius,  in  granting  or  refusing  amendments  ;  unless 
where  the  point  was  reversed  for  their  consideration 
by  consent  of  parties  at  the  trial. 

290.  It  will  be  observed  that,  while  the  9  Geo.  4, 
c.  15,  extended  to  trials  for  misdemeanors,  the  3  &  4 
Will.  4,  c.  42,  s.  23,  and  the  other  statutes  above  re- 
ferred to,  were,  for  the  most  part,  restricted  to  civil 
cases.  But  the  11  &  12  Vict.  c.  47,  s.  4,  empowers 
any  court  of  oyer  and  terminer  and  general  jail  de- 
livery, if  such  court  shall  see  fit  so  to  do,  to  cause  the 
indictment  or  information  for  any  offense  whatever, 
when  any  variance  or  variances  shall  appear  between 
any  matter  in  writing  or  in  print  produced  in  evidence 
and  the  recital  or  setting  forth  thereof  in  the  indictment 
or  information  whereon  the  trial  is  pending,  to  be  forth- 
with amended  in  such  particular  or  particulars  by  some 
officer  ofthe  court;  and  after  such  amendment  the 
trial  shall  proceed  in  the  same  manner  in  all  respects, 

(c)  See  a  large  number  collected  in  v.  Gracie,  13  Id.  548  ;  Hughes  v  Bury, 
the  note  (-.  Bristow  v.  Wright,  I  Smith,      1  Fost.  &  F.  374. 

L.  C.  570,  5th  ed.  (/)  Under  the  3  &  4  Will   4,  c.  42. 

(d)  Wickes  v.  Grove,  2  Jur.,  X.  S.  s.  23,  it  was  held,  that  a  judge  ought 
212,  213,  per  Martin,  B.  not  to  amend  a  plea,  so  as  to  render  !<. 

(e)  Evans  v.  Powis,  1  Exch  601;  liable  to  special  demurrer.  Burj>  v. 
Martyn  v.  Williams,  1  H.  &  N.  817  ;  Blogg,  12  Q.  B.  887;  Hassall  v.  Cole. 
Bury  v.  Blogg,  12  Q.  B.  S77  ;  Graham      13  Jur.  630. 


HOW    MUCH    ML/ST    BE    PROVED.         525 

&c,   as    if    no    such   variance    or   variances    had    ap- 
peared. 

291.  And  a  far  greater  alteration  in  the  law  on 
this  part  of  the  subject,  lias  been  effected  by  the  14  & 
15  Vict.  c.  100,  some  portions  of  which  have  been  al- 
ready referred  to.  (V)  This  statute  enacts,  in  its 
first  section,  that  "Whenever  on  the  trial  of  any  in- 
dictment  for  any  felony  or  misdemeanor,  there  shall  ap- 
pear to  be  any  variance  between  the  statement  in  such 
indictment  and  the  evidence  offered  in  proof  thereof, 
in  the  name  of  any  county,  riding,  division,  city, 
borough,  town  corporate,  parish,  township,  or  place 
mentioned  or  described  in  any  such  indictment,  or  in 
the  name  or  description  of  any  person  or  persons,  or 
body  politic  or  corporate,  therein  stated  or  alleged  to 
be  the  owner  or  owners  of  any  property,  real  or  per- 
sonal, which  shall  form  the  subject  of  any  offense 
charge  1  then -in,  or  in  the  name  or  description  of  any 
person  or  persons,  body  politic  or  corporate,  therein 
stated  or  alleged  to  be  injured  or  damaged,  or  intended 
to  be  injured  or  damaged  by  the  commission  of  such 
offense,  or  in  a  christian  name  or  surname,  or  both 
christian  name  ana  surname,  01  other  di  cription 
whit  oever,  of  any  person  or  pei  1  ns  whomsoo 
therein  named  or  described,  01  in  the  name  or  descrip- 
tion of  any  matter  or  thing  whatsoevei  therein  named 
or  desi  riled,  or  in  the  ownership  of  any  propi  1 
named  <>r  described  therein,  it  shall  and  ma)  1"-  law- 
ful for  the  court  before  which  the  trial  hall  be  had,  if 
it  shall  consider  su<  h  variance  not  material  t"  the  mi  r- 
itsol  the  1  1  e,  and  that  the  def<  ndant  «  annot  1"-  pr 
udiced  thereby  in  his  defen  e  on  ui  h  merit! .  t<>  oi 
such  indictment  to  !»■  amended  to  the  pn 

by  some  officer  of  the  court  01  othei  person,  both  in 

(s)  ■">'•  -4. 


526        PRIMARY    RULES    OF    EVIDENCE. 

that  part  of  the  indictment  where  such  variance  occurs 
and  in  every  other  part  of  the  indictment  which  it  may 
become  necessary  to  amend,  on  such  terms  as  to  post- 
poning the  trial  to  be  had  before  the  same  or  another 
jury,  as  such  court  shall  think  reasonable  ;  and  after 
any  such  amendment  the  trial  shall  proceed, whenever 
the  same  shall  be  proceeded  with,  in  the  same  manner 
in  all  respects,  and  with  the  same  consequences,  as  if 
no  such  variance  had  occurred :  Provided  that,  in  all 
such  cases  where  the  trial  shall  be  so  postponed  as 
aforesaid,  it  shall  be  lawful  for  such  court  to  respite 
the  recognizances  of  the  prosecutor  and  witnesses,  and 
of  the  defendant,  and  his  surety  or  sureties,  if  any, 
accordingly  :  Provided  also,  that  where  any  such  trial 
shall  be  to  be  had  before  another  jury,  the  crown  and 
the  defendant  shall  respectively  be  entitled  to  the  same 
challenges,  as  they  were  respectively  entitled  to  before 
the  first  jury  was  sworn." 


END    OF    VOLUME    L 


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